Pebble Beach Company v. Damir Kruzicevic
Claim Number: FA0812001238674
Complainant is Pebble Beach Company (“Complainant”), represented by Diane
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <pebblebeachhotels.com>, registered with Fabulous.com Pty Ltd.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 15, 2008; the National Arbitration Forum received a hard copy of the Complaint on December 18, 2008.
On December 15, 2008, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <pebblebeachhotels.com> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 19, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 8, 2009 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@pebblebeachhotels.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 13, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant is a
Complainant holds registrations of its
Respondent registered the <pebblebeachhotels.com> domain name on or about September 5, 2001.
The disputed domain name resolves to a website at <cheaphotelrooms.com>, a hotel reservation service which is in competition with the business of Complainant.
Respondent’s <pebblebeachhotels.com>
domain name is confusingly similar to Complainant’s
Respondent does not have any rights or legitimate interests in the domain name <pebblebeachhotels.com>.
Respondent registered and uses the disputed <pebblebeachhotels.com> domain name in bad faith.
Respondent
has been a respondent in previous UDRP proceedings in which bad faith
registration and use of domain names has been found on its part, including Ritz
Hotel, Ltd. v. Kruzicevic, D2005-1137 (WIPO Jan. 16, 2006); Sw. Airlines
Co. v. Kruzicevic, D2003-0249 (WIPO July 3, 2003); and Six Continents
Hotels, Inc. v. Kruzicevic, D2002-0674 (WIPO Sept. 10, 2002).
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has sufficiently established rights in the
Respondent’s <pebblebeachhotels.com>
domain name contains Complainant’s entire mark, and merely adds the descriptive
term “hotels,” and the generic top-level domain (“gTLD”) “.com.” The addition of a generic term and the gTLD
do not distinguish the disputed domain name from Complainant’s
[T]he fact that a domain name wholly incorporates a Complainant’s
registered mark is sufficient to establish identity or confusing similarity for
purposes of the Policy despite the addition of other words to such marks.
See also Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the domain name <marriott-hotel.com> is confusingly similar to a complainant’s MARRIOTT mark); further see Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of a domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar to a competing mark).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Under this heading, Complainant must at the outset make out a prima facie showing that Respondent lacks rights to and legitimate interests in the <pebblebeachhotels.com> domain name. The burden then shifts to Respondent to establish that it has rights to or legitimate interests in the disputed domain name. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001):
Proving
that the Respondent has no rights or legitimate interests in respect of the
Domain Name requires the Complainant to prove a negative. For the purposes of
this sub paragraph, however, it is sufficient for the Complainant to show a
prima facie case and the burden of proof is then shifted on to the shoulders of
Respondent. In those circumstances, the
common approach is for respondents to seek to bring themselves within one of
the examples of paragraph 4(c) or put forward some other reason why they can
fairly be said to have a relevant right or legitimate interests in respect of
the domain name in question.
Complainant has sufficiently made out a prima facie showing under Policy ¶ 4(a)(ii), while Respondent, for its part, has failed to respond to the allegations of the Complaint. We are therefore free to conclude that Respondent has no rights or interests in its domain name cognizable under the Policy. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002):
Because
Complainant’s Submission constitutes a prima
facie case under the Policy, the burden effectively shifts to
Respondent. Respondent’s failure to respond means that Respondent has not
presented any circumstances that would promote its rights or legitimate
interests in the subject domain name under Policy ¶ 4(a)(ii).
See also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002): “[B]ased on
Respondent's failure to respond, it is presumed that Respondent lacks all
rights and legitimate interests in the disputed domain name.”
We will nonetheless examine the record under the criteria set out in Policy ¶ 4(c) to determine if there is any basis for concluding that Respondent has such rights or interests.
We begin by noting that there is no dispute as to
Complainant’s allegation to the effect that Respondent’s <pebblebeachhotels.com> domain name routes
Internet users to a website resolving from the <cheaphotelrooms.com>
domain name, a hotel reservation service which is in competition with the
business of Complainant. This is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i) nor a legitimate noncommercial
or fair use under Policy ¶ 4(c)(iii). See
Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003):
Respondent's demonstrated intent to divert Internet users
seeking Complainant's website to a website of Respondent and for Respondent's
benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use
under Policy ¶ 4(c)(iii).
See also DLJ Long Term Inv. Corp. v.
BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002):
“Respondent is not using the disputed domain name in connection with a bona
fide offering of goods and services because Respondent is using the domain name
to divert Internet users to <visual.com>, where services that compete
with Complainant are advertised.”
In addition, Respondent is listed in the pertinent WHOIS information as “Damir Kruzicevic” rather than the contested domain name. This suggests that Respondent is not commonly known by the contested domain name. We therefore conclude that Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating that the fact that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” is a factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003): “Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent
does not contest Complainant’s assertion to the effect that Respondent has been
a respondent in previous UDRP proceedings in which bad faith registration and
use of domain names has been found on its part, as cited in the Complaint. This
being so, we conclude that Respondent has engaged in a pattern of bad faith
registration and use of domain names, including in the instance before us, under
Policy ¶ 4(b)(ii).
See Westcoast
Contempo Fashions Ltd. v.
Moreover, we have already observed
that Respondent’s <pebblebeachhotels.com>
domain name resolves to a website that offers services in competition with
Complainant’s business. Respondent’s
conduct thus diverts Internet users to its competing website, and in the
process disrupts Complainant’s business, which constitutes bad faith
registration and use of its domain under Policy ¶ 4(b)(iii). See Disney
Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003):
Respondent registered a domain name
confusingly similar to Complainant's mark to divert Internet users to a
competitor's website. It is a reasonable inference that Respondent's purpose of
registration and use was to either disrupt or create confusion for Complainant's
business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).
Finally, it is
reasonable to presume, as we do, from the evidence before us, that Respondent’s
web site operates to derive financial benefit to Respondent, in the form of
click-through fees, for each Internet user diverted from Complainant’s business
and to the sites of competing businesses as alleged in the Complaint. This is evidence of bad faith registration
and use of the contested domain name under Policy ¶ 4(b)(iv).
For these reasons, the Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <pebblebeachhotels.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: January 26, 2009
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