Marriott International, Inc. v. PLUTO DOMAIN SERVICES PRIVATE LIMITED.
Claim Number: FA0901001243378
Complainant is Marriott International, Inc. (“Complainant”), represented by Jason
J. Mazur, of Arent Fox LLP,
The domain name at issue is <courtyardbymarriott.com>, registered with Lead Networks Domains Pvt. 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On January 26, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 19, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <courtyardbymarriott.com> domain name is identical to Complainant’s COURTYARD BY MARRIOTT mark.
2. Respondent does not have any rights or legitimate interests in the <courtyardbymarriott.com> domain name.
3. Respondent registered and used the <courtyardbymarriott.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Marriott International, Inc.,
first registered its COURTYARD BY MARRIOTT mark with the United States Patent
and Trademark Office (“USPTO”) on
Respondent registered the disputed 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.
Complainant has provided evidence of the registration of its
COURTYARD BY MARRIOTT mark with the USPTO.
The Panel finds this registration sufficiently establishes Complainant’s
rights in the mark under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075
(Nat. Arb. Forum
domain name incorporates Complainant’s COURTYARD BY MARRIOTT mark with the
deletion of the spaces between the words, and the addition of the top-level
domain “.com.” The Panel finds the
deletion of spaces between words is irrelevant under a Policy ¶ 4(a)(i) analysis because spaces are impermissible characters in
domain names. Furthermore, the Panel
finds the addition of a generic top-level domain, such as “.com,” does not
distinguish the disputed domain name from a mark because a top-level domain is
a required feature of every domain name.
See Bond & Co. Jewelers, Inc. v.
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not possess rights
or legitimate interests in the disputed domain name. Complainant must present a prima facie case to support these
allegations before the burden shifts to Respondent to prove it does have rights
or legitimate interests in the disputed domain name. See
Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000)
(holding that once the complainant asserts that the respondent has no rights or
legitimate interests with respect to the domain, the burden shifts to the
respondent to provide “concrete evidence that it has rights to or legitimate
interests in the domain name at issue”).
The Panel finds Complainant has presented an adequate prima facie case to support its
allegations and Respondent has failed to respond to these proceedings. Therefore, the Panel may conclude Respondent
does not possess rights or legitimate interests in the disputed domain
name. See Broadcom
Corp. v. Ibecom
Respondent’s disputed domain name offers pay-per-click links to third-party websites, which compete with Complainant’s hotel business. The Panel finds Respondent’s use of the disputed domain names is 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 Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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)).
The WHOIS information lists Respondent as “PLUTO DOMAIN
SERVICES PRIVATE LIMITED.,” and Complainant contends it has not authorized
Respondent to use its COURTYARD BY MARRIOTT mark. Therefore, the Panel finds Respondent is not
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s use of the disputed domain name to provide links to third-party competitors of Complainant constitutes disruption of Complainant’s business. The Panel finds this evidences Respondent’s registration and use of the disputed domain name in bad faith under Policy ¶ 4(b)(iii). See 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)); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
Also, Respondent presumably receives compensation in the
form of click-through fees for its use of the identical disputed domain
name. The Panel finds this is a clear
attempt by Respondent to profit from the goodwill Complainant has fostered in
its COURTYARD BY MARRIOTT mark. Thus
Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See
The Panel finds 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 <courtyardbymarriott.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 4, 2009
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