Radisson Hotels International, Inc. v. Chen Fang Fang
Claim Number: FA0905001263371
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 <radissonplaza.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
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 May 15, 2009; the National Arbitration Forum received a hard copy of the Complaint May 18, 2009.
On May 19, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <radissonplaza.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com registration agreement and 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 28, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 17, 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@radissonplaza.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 23, 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, <radissonplaza.com>, is confusingly similar to Complainant’s RADISSON mark.
2. Respondent has no rights to or legitimate interests in the <radissonplaza.com> domain name.
3. Respondent registered and used the <radissonplaza.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Radisson Hotels International, Inc., is the owner of multiple registrations of the RADISSON mark with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 920,862 issued September 21, 1971). Complainant also holds trademark registrations for the RADISSON mark with numerous governmental trademark authorities worldwide. The RADISSON mark has been used by Complainant and its predecessors-in-interest since 1909 in connection with its internationally-renowned RADISSON hotel chain.
Respondent registered the <radissonplaza.com> domain name March 25, 2007. The disputed domain name is being used to resolve to a website featuring click-through links that resolve to the websites of Complainant’s competitors in the hotel services industry.
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.
Complainant’s registration of the RADISSON mark with the
USPTO and other governmental trademark authorities worldwide is sufficient to
satisfy Policy ¶ 4(a)(i). The Panel finds that it is irrelevant for the
purposes of Policy ¶ 4(a)(i) whether Complainant
registered its trademark in the country of Respondent’s residence. See Honeywell
Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the
complainant’s numerous registrations for its HONEYWELL mark throughout the
world sufficient to establish the complainant’s rights in the mark under the
Policy ¶ 4(a)(i)); see also Renaissance Hotel Holdings, Inc. v.
Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that
it does not matter whether the complainant has registered its trademark in the
country in which the respondent resides, only that it can establish rights in some
jurisdiction).
Complainant alleges that Respondent’s <radissonplaza.com>
domain name is confusingly similar to its RADISSON mark under Policy ¶ 4(a)(i). The <radissonplaza.com>
domain name incorporates Complainant’s RADISSON mark in its entirety with the
addition of the descriptive term “plaza” and the generic top-level domain
“.com.” Complainant contends that the
addition of the term “plaza” to its RADISSON mark actually increases the
likelihood of confusion because Complainant operates several Radisson-branded
hotels known as “
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant contends that Respondent does not have any rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). Once Complainant makes a prima face case that Respondent has no rights or interests, the burden 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 established a prima facie case in these proceedings. Since Respondent 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 Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).
This Panel, however, examines the record to determine whether evidence in the submission suggests that Respondent has any rights to or legitimate interests in the <radissonplaza.com> domain name pursuant to Policy ¶ 4(c).
Respondent’s <radissonplaza.com> domain name
resolves to a website featuring click-through links that divert Internet users
to the websites of Complainant’s competitors.
The Panel presumes that Respondent is generating revenue from such use
and the Panel finds that Respondent’s 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 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); see also Tesco
Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the
respondent was not using the <tesco-finance.com> domain name in
connection with a bona fide offering of goods or services or a legitimate
noncommercial or fair use by maintaining a web page with links to the
complainant’s competitors in the financial services industry).
Furthermore,
Complainant contends that Respondent is not commonly known by the disputed
domain name. The WHOIS information lists
the registrant as “Chen Fang Fang.”
This information suggests that Respondent is not commonly known by the <radissonplaza.com>
domain name. No evidence in the record suggests
the contrary. The Panel finds that
Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v.
Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the
respondent was not commonly known by the disputed domain names where the WHOIS
information, as well as all other information in the record, gave no indication
that the respondent was commonly known by the disputed domain names, and the
complainant had not authorized the respondent to register a domain name
containing its registered mark); see also
St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21,
2007) (concluding a respondent has no rights or legitimate interests in a
disputed domain name where there was no evidence in the record indicating that
the respondent was commonly known by the disputed domain name).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant alleges that Respondent is using a domain name,
which is confusingly similar to Complainant’s RADISSON mark, to attract
Internet users to a website containing links that resolve to websites of
Complainant’s competitors. The Panel finds
that appropriating Complainant’s RADISSON mark to divert Internet users to
competing websites is likely disrupting Complainant’s business and supports
findings of bad
faith registration and use under Policy ¶ 4(b)(iii). See
David Hall Rare Coins v.
Complainant further contends that 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 mark. The disputed domain name’s resolving website features click-through links that further resolve to websites of Complainant’s competitors. The Panel presumes that Respondent is profiting from such use and the Panel finds that Respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv). 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).
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 <radissonplaza.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: July 1, 2009.
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum