Two Flags Joint Venture, LLC v. Maria Varela
Claim Number: FA0910001288375
Complainant is Two
Flags Joint Venture, LLC (“Complainant”), represented by Susan L.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <ramadainns.com>, registered with Backslap Domains, Inc.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 8, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 12, 2009.
On October 8, 2009, Backslap Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <ramadainns.com> domain name is registered with Backslap Domains, Inc. and that Respondent is the current registrant of the name. Backslap Domains, Inc. has verified that Respondent is bound by the Backslap Domains, Inc. 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 October 14, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 3, 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@ramadainns.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 9, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <ramadainns.com> domain name is confusingly similar to Complainant’s RAMADA INN mark.
2. Respondent does not have any rights or legitimate interests in the <ramadainns.com> domain name.
3. Respondent registered and used the <ramadainns.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Two Flags Joint Venture, LLC, a subsidiary of Wyndham Worldwide Corporation, is the owner of numerous trademarks containing the RAMADA mark, including the RAMADA INN mark. Complainant licenses these marks to its sister subsidiary, Ramada Worldwide, Inc., for use in connection with hotels and hotel services. Complainant holds a registration of the RAMADA INN mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 718,705 issued July 18, 1961).
Respondent, Maria Varela, registered the <ramadainns.com> domain name on April 14, 2003. The disputed domain name resolves to a website that displays hyperlinks to Complainant’s competitors’ websites.
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 holds a registration of the RAMADA INN mark with the USPTO (Reg. No. 718,705 issued July 18, 1961). Accordingly, the Panel finds that Complainant has sufficiently established rights in the RAMADA INN mark pursuant to Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”).
Respondent’s <ramadainns.com> domain name
contains Complainant’s entire RAMADA INN mark, deletes the space within the
mark, adds the letter “s,” and adds the generic top-level domain name (“gTLD”)
“.com.” The Panel finds that none of
these changes to Complainant’s mark sufficiently distinguish the disputed
domain name from Complainant’s mark.
Therefore, the Panel finds that the <ramadainns.com> domain
name is confusingly similar to Complainant’s RAMADA INN mark under Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc.,
D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly
incorporates a Complainant’s registered mark is sufficient to establish
identity [sic] or confusing similarity for purposes of the Policy despite the
addition of other words to such marks”); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat.
Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms
and the addition of a gTLD do not establish distinctiveness from the
complainant’s mark under Policy ¶ 4(a)(i)); see
also Nat’l Geographic Soc’y v. Stoneybrook Invs., FA 96263 (Nat. Arb. Forum
Jan. 11, 2001) (finding that the domain name <nationalgeographics.com>
was confusingly similar to the complainant’s NATIONAL GEOGRAPHIC mark); see also Jerry Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Pursuant to Policy ¶ 4(a)(ii),
Complainant must make a prima facie
showing that Respondent lacks rights and legitimate interests in the disputed domain name. The burden then shifts to Respondent and
Respondent must establish that it has rights or legitimate interests in the
disputed domain name. The Panel finds
that Complainant has sufficiently made its prima
facie showing under Policy ¶ 4(a)(ii). The burden now shifts to Respondent, from
whom no response was received. See SEMCO Prods.,
LLC v. dmg world media (
The WHOIS information for the <ramadainns.com>
domain name lists “Maria Varela” as the registrant. Respondent has not provided any evidence to
suggest that it is commonly known by the disputed domain name. Moreover, Complainant asserts that it has not
licensed or otherwise authorized Respondent to use the RAMADA INN mark. Therefore, the Panel finds that Respondent is
not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum
Dec. 7, 2006) (finding that the respondent failed to establish rights and
legitimate interests in the <emitmortgage.com> domain name as the
respondent was not authorized to register domain names featuring the
complainant’s mark and failed to submit evidence of that it is commonly known
by the disputed domain name); see
also Coppertown Drive-Thru Sys., LLC v. Snowden, FA
715089
(Nat. Arb. Forum July 17, 2006) (concluding that the
respondent was not commonly known by the <coppertown.com> domain name
where there was no evidence in the record, including the WHOIS information,
suggesting that the respondent was commonly known by the disputed domain name).
The <ramadainns.com> domain name resolves to a website that features hyperlinks to third-party websites that directly compete with Complainant’s hotels business. The Panel presumes that Respondent receives click-through fees for these hyperlinks. Therefore, the Panel finds that Respondent’s use of the disputed domain name is 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. 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)); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was 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)).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Since Respondent registered the <ramadainns.com> domain name on April 14, 2003, the disputed domain name has resolved to a website that contains hyperlinks to Complainant’s competitors’ websites. The Panel finds that Respondent’s use of the disputed domain name disrupts Complainant’s business. The Panel further finds that such a disruption 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 David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
Furthermore, the Panel finds that Respondent’s use of the
confusingly similar <ramadainns.com> domain name creates a
likelihood of confusion as to Complainant’s affiliation with the disputed
domain name. Moreover, the Panel
presumes, as does Complainant, that Respondent receives click-through fees for
the hyperlinks featured on the resolving website. Therefore, the Panel finds that Respondent is
commercially gaining from this likelihood of confusion through its presumed
receipt of click-through fees, which constitutes bad faith registration and use
under Policy ¶ 4(b)(iv). See
The Panel finds that 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 <ramadainns.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: November 20, 2009
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