Radisson Hotels International, Inc. v. Deng Youqian
Claim Number: FA0905001263344
Complainant is Radisson
Hotels International, Inc. (“Complainant”), represented by Elizabeth C. Buckingham, of Dorsey & Whitney LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <radissonplazahotel.com>, registered with Rebel.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 15, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 18, 2009.
On May 20, 2009, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <radissonplazahotel.com> domain name is registered with Rebel.com and that Respondent is the current registrant of the name. Rebel.com has verified that Respondent is bound by the Rebel.com 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 May 20, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 9, 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@radissonplazahotel.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 11, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
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 <radissonplazahotel.com> domain name is confusingly similar to Complainant’s RADISSON PLAZA HOTELS mark.
2. Respondent does not have any rights or legitimate interests in the <radissonplazahotel.com> domain name.
3. Respondent registered and used the <radissonplazahotel.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant,
Radisson Hotels International, Inc., registered the RADISSON PLAZA HOTELS mark
with the United States Patent and Trademark Office on September 5, 1989 (Reg.
No. 1,555,298) and also holds trademark registrations for this mark with other
governmental authorities throughout the world. Complainant uses the RADISSON PLAZA HOTELS
mark in connection with its hotel, resort and related services worldwide.
Respondent
registered the <radissonplazahotel.com> domain name on
March 23, 2007. Respondent is using the
disputed domain name to resolve to a website featuring click-through links
which further resolve to websites of Complainant’s competitors. Respondent has been subjected to at least
four previous adverse UDRP proceedings in which the disputed domain names were
transferred to the respective complainants of those proceedings. See The
Gap, Inc. v. Deng Youqian, D2009-0113 (WIPO Mar. 23, 2009) (ordering
transfer of <babygapclothing.com>, <biggap.com>,
<gapcoupon.com>, <gapfashion.com>, <bananarepublic.com> and
<oldnavyreidsystems.com>); see also
The Gap, Inc., v. Deng Youqian, D2008-1187 (WIPO Sept. 29, 2008) (ordering
transfer of <gapoutlet.com>); see
also AllSouth Fed. Credit Union v. Deng Youqian. FA 1212652 (Nat. Arb.
Forum Aug. 8, 2008) (ordering transfer of <allsouthcreditunion.com>); see also Earth Prods. Inc. v. Deng Youqian,
D2008-0256 (WIPO Apr. 15, 2008) (ordering transfer of
<adioshoes.com>).
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 concludes that Complainant’s registration of the RADISSON PLAZA HOTELS mark with the USPTO and other governmental trademark authorities worldwide is sufficient to satisfy Policy ¶ 4(a)(i). The Policy does not require Complainant to have registered the RADISSON PLAZA HOTELS mark in the country of Respondent’s residence. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant contends that Respondent’s <radissonplazahotel.com> domain name is confusingly similar to Complainant’s RADISSON PLAZA HOTELS mark. The <radissonplazahotel.com> domain name contains the distinctive portion of Complainant’s mark with the deletion of the letter “s” and the addition of the generic top-level domain “.com.” The Panel finds that these alterations fail to sufficiently distinguish Respondent’s disputed domain name from Complainant’s mark. See Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from the complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel concludes that Respondent’s <radissonplazahotel.com> domain name is confusingly similar to Complainant’s RADISSON PLAZA HOTELS mark under Policy ¶ 4(a)(i).
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant contends that Respondent does not have any rights or legitimate interests in the disputed domain name. Once a prima facie case has been established by Complainant, the burden then shifts to Respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). The Panel finds that Complainant has adequately established a prima facie case in these proceedings. Since Respondent has failed to respond to the allegations against it, the Panel may assume that Respondent lacks any rights or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); 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.”). The Panel now chooses to examine the record to determine whether Respondent has any relevant rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Respondent’s <radissonplazahotel.com> domain name resolves to a website featuring click-through links which divert Internet users to websites of Complainant’s competitors. The Panel presumes that Respondent is generating revenue from such use. Thus, the Panel concludes that Respondent use of the disputed domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or (iii), respectively. 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 Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum July 29, 2005) (holding that the respondent’s use of disputed domain names to market competing limousine services was not a bona fide offering of goods or services under Policy ¶ 4(c)(i), as the respondent was appropriating the complainant’s CAREY mark in order to profit from the mark).
Furthermore, Complainant contends that Respondent is not commonly known by the disputed domain name. The WHOIS information lists registrant as “Deng Youqian.” This information suggests that Respondent is not commonly known by the <radissonplazahotel.com> domain name and there is no evidence in the record to the contrary. The Panel concludes that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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.”); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has previously been subjected to four previous
adverse UDRP proceedings for domain names incorporating famous marks. See The
Gap, Inc. v. Deng Youqian, D2009-0113 (WIPO Mar. 23, 2009) (ordering
transfer of <babygapclothing.com>, <biggap.com>,
<gapcoupon.com>, <gapfashion.com>, <bananarepublic.com> and
<oldnavyreidsystems.com>); see also
The Gap, Inc., v. Deng Youqian, D2008-1187 (WIPO Sept. 29, 2008) (ordering
transfer of <gapoutlet.com>); see
also AllSouth Fed. Credit Union v. Deng Youqian. FA 1212652 (Nat. Arb.
Forum Aug. 8, 2008) (ordering transfer of <allsouthcreditunion.com>); see also Earth Prods. Inc. v. Deng Youqian,
D2008-0256 (WIPO Apr. 15, 2008) (ordering transfer of
<adioshoes.com>). Complainant
contends that Respondent has a longstanding history of cybersquatting which
constitutes a pattern of bad faith registration and use pursuant to Policy ¶
4(b)(ii). See Sony Kabushiki Kaisha v. Anderson, FA 198809 (Nat. Arb. Forum Nov. 20, 2003) (finding a
pattern of registering domain names in bad faith pursuant to Policy ¶ 4(b)(ii)
when the respondent previously registered domain names incorporating well-known
third party trademarks); see also Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum
Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶
4(b)(ii) where the respondent had been subject to numerous UDRP proceedings
where panels ordered the transfer of disputed domain names containing the
trademarks of the complainants). The Panel finds that Respondent engaged in
bad faith registration and use of the <radissonplazahotel.com> domain name under Policy ¶ 4(b)(ii) based on
its pattern of cybersquatting.
Complainant alleges that Respondent is using a domain name, which is confusingly similar to Complainant’s RADISSON PLAZA HOTELS mark, to attract Internet users to a website containing links which resolve to websites of Complainant’s competitors. The Panel concludes that appropriating Complainant’s RADISSON PLAZA HOTELS mark to divert Internet users is likely disrupting Complainant’s business and that such use constitutes bad faith registration and use 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 St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant further contends that Respondent’s registration and use of the disputed domain name constitutes bad faith under Policy ¶ 4(b)(iv) because Respondent intentionally attempts to attract Internet users, for financial gain, to its domain name by creating a likelihood of confusion with Complainant and its RADISSON PLAZA HOTELS mark. Additionally, the domain name and resolving website contains click-through links which further resolve to Complainant’s competitors. The Panel presumes that Respondent is profiting from such use. See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name). Therefore, the Panel finds that Respondent engaged in bad faith registration and use under Policy ¶ 4(b)(iv).
Complainant has satisfied 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 <radissonplazahotel.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: June 24, 2009
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