Choice Hotels International, Inc. v. Ruben Costa, no company
Claim Number: FA0807001215114
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Halle
B. Markus, of Arent Fox LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <confortinn.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On July
21, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 11, 2008
by which Respondent could file a
response to the Complaint, was transmitted to Respondent via e-mail, post and
fax, to all entities and persons listed on Respondent's registration as
technical, administrative and billing contacts, and to postmaster@confortinn.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <confortinn.com> domain name is confusingly similar to Complainant’s COMFORT INN mark.
2. Respondent does not have any rights or legitimate interests in the <confortinn.com> domain name.
3. Respondent registered and used the <confortinn.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Choice Hotels International, Inc., owns the rights in the COMFORT INN trademark (Reg. No. 1,315,180 issued January 15, 1985), which was registered with the United States Patent and Trademark Office (“USPTO”) and other governmental trademark authorities worldwide. Complainant operates in the hotel services industry, and franchises over 5,300 hotels worldwide, with 2,000 of these hotels operating under the COMFORT INN mark. Complainant also owns and operates the <comfortinn.com> and <comfortinns.com> domain names for use in its business.
Respondent registered the <confortinn.com>
domain name on
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The Panel finds that Complainant’s registration of the
COMFORT INN mark with the USPTO adequately confers sufficient rights in the
mark for the purposes of UDRP standing under Policy ¶ 4(a)(i). See Google, Inc. v. DktBot.org, FA
286993 (Nat. Arb. Forum
Respondent’s <confortinn.com>
domain name merely incorporates Complainant’s COMFORT INN mark, while adding
the generic top-level domain (“gTLD”) “.com” and substituting the “m” for “n,”
presumably to maximize the potential of common Internet user typographical
errors. The Panel finds that neither of
these alterations distinguishes the disputed domain name, and that therefore
the disputed domain name is confusingly similar to Complainant’s mark under
Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27,
2007) (concluding that the addition of a gTLD, whether it be “.com,” “.net,”
“.biz,” or “.org,” is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Dow Jones & Co., Inc. v. Powerclick, Inc., D2000-1259 (WIPO
Dec. 1, 2000) (holding that the deliberate introduction of errors or changes,
such as the addition of a fourth “w” or the omission of periods or other such
“generic” typos do not change respondent’s infringement on a core trademark
held by the complainant).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks all rights and
legitimate interests in the <confortinn.com>
domain
name. When Complainant makes a prima facie case in support of its
allegations, the burden is shifted to Respondent to prove that it does have
rights or legitimate interests in the disputed domain name pursuant to Policy ¶
4(a)(ii). The Panel finds that in this
case, Complainant has established a prima
facie case. See Compagnie Generale des Matieres Nucleaires v.
Greenpeace Int’l, D2001-0376 (WIPO
Due to Respondent’s failure to respond to the Complaint, the
Panel may assume that Respondent lacks rights and legitimate interests in the
disputed domain name. See CMGI,
Inc. v. Reyes, D2000-0572 (WIPO
There is no evidence in the
record, including the WHOIS information, to suggest that Respondent is or ever
was commonly known by the disputed domain name.
Respondent is listed as “Ruben Costa, no company” in the WHOIS
information, and there is no alleged license or permission on behalf of
Respondent to use Complainant’s mark.
Therefore, the Panel finds that Respondent is not commonly known by the
disputed domain name under Policy ¶ 4(c)(ii).
See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding
that the respondent was not commonly known by the <coppertown.com> domain
name where there was no evidence in the record, including the WHOIS
information, suggesting that the respondent was commonly known by the disputed
domain name); see
also
Respondent’s disputed domain name resolves to a website that
features a search engine and third-party advertisements for Complainant’s
direct competitors. Respondent
presumably benefits through the receipt of referral fees for the placement of such
advertisements. Therefore, the Panel
finds that Respondent has not created a bona
fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum
Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com>
domain name to redirect Internet users to a website featuring links to travel
services that competed with the complainant was not a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial
or fair use pursuant to Policy ¶ 4(c)(iii)); see also Trans
Global
Respondent has engaged in typosquatting, which refers to the
practice of registering a domain name with the intent of capitalizing on common
typographical errors, such as the misspelling of a trademark. In this case, Respondent spells out the word
“comfort” as “confort,” based on Complainant’s COMFORT INN mark. The Panel finds that Respondent’s use of
typosquatting constitutes evidence that Respondent lacks rights and legitimate
interests in the disputed domain name under Policy ¶ 4(a)(ii). See IndyMac Bank
F.S.B. v. Ebeyer, FA 175292
(Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and
legitimate interests in the disputed domain names because it “engaged
in the practice of typosquatting by taking advantage of Internet users who
attempt to access Complainant's <indymac.com> website but mistakenly
misspell Complainant's mark by typing the letter ‘x’ instead of the letter
‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of third-party advertisements on the resolving website constitutes disruption of Complainant’s business. Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
The Panel finds that
Respondent’s engagement in typosquatting constitutes bad faith registration and
use under Policy ¶ 4(a)(iii). See Dermalogica,
Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com>
domain name was a “simple misspelling” of the complainant's DERMALOGICA
mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶
(a)(iii)); see also Zone Labs, Inc.
v. Zuccarini, FA 190613 (Nat. Arb.
Forum
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <confortinn.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: September 2, 2008
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