Choice Hotels International, Inc. v. Anderew Demidoff
Claim Number: FA0811001234009
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Halle
B. Markus of Arent Fox LLP, Washington, D.C., USA. Respondent is Anderew Demidoff (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <clarionvermont.com>, registered with Network Solutions, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically November 14, 2008; the National Arbitration Forum received a hard copy of the Complaint November 14, 2008.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 10, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <clarionvermont.com>, is confusingly similar to Complainant’s CLARION mark.
2. Respondent has no rights to or legitimate interests in the <clarionvermont.com> domain name.
3. Respondent registered and used the <clarionvermont.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Choice Hotels
International, Inc., has made continuous use of the CLARION mark since
1984. Complainant also holds several
registrations with the United States Patent and Trademark Office (“USPTO”) in
the CLARION mark (See, e.g., Reg. No.
Respondent registered the <clarionvermont.com>
domain name February 21, 2000. According
to Complainant, the disputed domain name resolves to a website that appears to
offer information about a Clarion Hotel & Suites located in
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."
Given 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 will draw such inferences as the Panel considers appropriate pursuant
to paragraph 14(b) of the Rules. The
Panel is entitled to accept all reasonable allegations and inferences as 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
Paragraph 4(a) of the Policy requires Complainant to 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.
By registering its CLARION mark with the USPTO, Complainant
established rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP
Servs., FA 221171 (Nat. Arb. Forum
domain name incorporates Complainant’s entire CLARION mark and adds the
geographic term “
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
The initial burden under Policy ¶ 4(a)(ii) is on Complainant
to prove that Respondent does not have rights to or legitimate interests in the
disputed domain name. Once Complainant
has made a prima facie case, the
burden shifts to Respondent to show that it does have rights or legitimate
interests pursuant Policy ¶ 4(c). See Compagnie
Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <clarionvermont.com>
domain name. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the CLARION mark, and the WHOIS information identifies Respondent as “Anderew Demidoff.” Thus, Respondent has not established rights
or legitimate interests in the disputed domain name under Policy ¶
4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
domain name is being used to resolve to a website that appears to have been
copied from a website of a Clarion Hotel that operated in Burlington, Vermont,
and adds advertisements for third-party websites that directly compete with
Complainant. The evidence supports an
inference that Respondent receives pay-per-click fees for these third-party
advertisements. Respondent’s passing
itself off as Complainant for Respondent’s gain is neither a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial use pursuant to
Policy ¶ 4(c)(iii). See Crow v.
LOVEARTH.net, FA 203208 (Nat. Arb. Forum
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
the website of a Clarion Hotel that once existed in
Respondent is using the <clarionvermont.com>
domain name, which is confusingly similar to Complainant’s CLARION mark, to redirect Internet users to
Respondent’s website that features links to third-party sites, some of which
compete with Complainant’s business. The
Panel finds that such use constitutes disruption of Complainant’s business and
is evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iii). See S. Exposure v. S. Exposure, Inc.,
FA 94864 (Nat. Arb. Forum
permits an inference that Respondent receives click-through fees for diverting
Internet users to third-party websites.
Because Respondent’s domain name is confusingly similar to Complainant’s
CLARION mark and the resolving website
passes itself off as Complainant’s official site, Internet users accessing Respondent’s disputed domain name may become
confused as to Complainant’s sponsorship of the resulting website. Thus, Respondent’s use of the <clarionvermont.com> domain name constitutes bad faith registration and use
pursuant to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <clarionvermont.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: December 19, 2008.
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