Choice Hotels International, Inc. v. domains, ventures c/o domains Ventures
Claim Number: FA0902001249532
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Halle
B. Markus of Arent Fox LLP, Washington, DC, USA. Respondent is domains, ventures c/o domains
Ventures (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <choiceprivilages.com>, registered with Moniker Online Services, 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 February 25, 2009; the National Arbitration Forum received a hard copy of the Complaint February 26, 2009.
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 2, 2009, 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, <choiceprivilages.com>, is confusingly similar to Complainant’s CHOICE PRIVILEGES mark.
2. Respondent has no rights to or legitimate interests in the <choiceprivilages.com> domain name.
3. Respondent registered and used the <choiceprivilages.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Choice Hotels
International, Inc., began using the CHOICE PRIVILEGES mark in August
2001 when it began its loyalty rewards program.
The United States Patent and Trademark Office (“USPTO”) issued
Complainant a registration of the mark on
Respondent registered the <choiceprivilages.com> domain name July 8, 2003. As recently as February 10, 2009, the resolving website displayed links to third parties, some of which are Complainant’s direct competitors. Currently, the disputed domain name fails to resolve to an active website.
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 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 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.
The Panel finds that Complainant established rights pursuant
to Policy ¶ 4(a)(i) in the CHOICE PRIVILEGES mark by
its registration with the USPTO. See Expedia, Inc. v. Tan, FA 991075
(Nat. Arb. Forum
The <choiceprivilages.com>
domain name misspells Complainant’s CHOICE PRIVILEGES mark by replacing an “e”
with an “a.” The disputed domain name
also omits the space in the mark and adds the generic top-level domain (“gTLD”)
“.com.” The Panel finds that the <choiceprivilages.com> domain name is
confusingly similar to Complainant’s CHOICE PRIVILEGES mark pursuant to Policy
¶ 4(a)(i). See Isleworth Land Co. v.
Lost in Space, SA, FA 117330 (Nat. Arb. Forum
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the
disputed domain name. The Panel finds
that Complainant’s allegations establish such a prima facie case, and,
therefore, the burden shifts to Respondent to show that it does have rights to or
legitimate interests in the disputed domain name pursuant to the guidelines in
Policy ¶ 4(c). The Panel finds
that Respondent has no rights or legitimate interests in the <choiceprivilages.com> domain name pursuant
to Policy ¶ 4(a)(ii).
Since no response was submitted
in this case, the Panel may presume that Respondent has no rights or legitimate
interests in the disputed domain name.
However, the Panel still examines the record in consideration of the
factors listed in Policy ¶ 4(c). See
Domtar, Inc. v. Theriault.,
FA 1089426 (Nat. Arb. Forum
The Panel finds that no evidence in the record suggests that
Respondent is commonly known by the <choiceprivilages.com>
domain name. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the CHOICE PRIVILEGES mark, and the WHOIS information identifies
Respondent as “domains, ventures c/o domains
Ventures.” Thus, the Panel finds
that 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
As recently as February 10, 2009, Respondent was using the
disputed domain name to resolve to a website containing links to third-party
websites, some of which directly compete with Complainant. Accordingly, the Panel is permitted to make
an inference that Respondent received click-through fees for displaying these
hyperlinks. The Panel finds that this was
a diversion of Internet users for Respondent’s commercial benefit, and was
therefore not 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 ALPITOUR S.p.A. v. balata inc,
FA 888649 (Nat. Arb. Forum
Currently, the <choiceprivilages.com>
domain name does not resolve to an active website. The Panel finds that Respondent’s failure to
make an active use of the disputed domain name does not constitute a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See Thermo Electron Corp. v.
Xu, FA 713851 (Nat. Arb. Forum
Finally, Respondent’s <choiceprivilages.com>
domain name takes advantage of a common misspelling of Complainant’s CHOICE
PRIVILEGES mark. The Panel finds that
these actions constitute typosquatting, and are evidence that Respondent lacks
rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Respondent was using the <choiceprivilages.com>
domain name to resolve to a website containing links to third-party websites,
some of which directly compete with Complainant. The Panel finds Respondent was using the <choiceprivilages.com> domain name to
disrupt Complainant’s business by diverting Internet users to Complainant’s
competitors. This constitutes evidence
of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See
Puckett, Individually v. Miller, D2000-0297 (WIPO
The website that formerly resolved from
the <choiceprivilages.com>
domain name displayed links to sites that are related to and in direct
competition with Complainant’s business.
The Panel is permitted to make an inference that Respondent received
either pay-per-click or advertising fees for these advertisements. Since the disputed domain name is confusingly
similar to Complainant’s mark, Internet users were likely to be confused as to
Complainant’s affiliation or sponsorship of the disputed domain name and
resolving website. The Panel finds this
is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat.
Arb. Forum
The Panel finds that it may consider the totality of the
circumstances when conducting a Policy ¶ 4(a)(iii)
analysis for a determination of bad faith registration and use, and notes that
it is not limited to the enumerated factors in Policy ¶ 4(b). See Do The Hustle, LLC
v. Tropic Web, D2000-0624 (WIPO
The <choiceprivilages.com>
domain name currently fails to resolve to a website. The Panel
finds that Respondent’s failure to make an active use of the disputed domain
name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO
The Panel finds
that Respondent’s engagement in typosquatting is evidence that Respondent
registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Nat’l
Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO
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 <choiceprivilages.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: April 16, 2009.
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