Hyatt Corporation v. La Duzi
Claim Number: FA1003001313062
Complainant is Hyatt
Corporation (“Complainant”), represented by Alexis E. Payne, of Pattishall, McAuliffe, Newbury, Hilliard
& Geraldson LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <hyattgoldpassport.com>,
registered with
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 11, 2010. The Complaint was submitted in both Chinese and English
On March 13, 2010,
On April 6, 2010, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of April 26, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@hyattgoldpassport.com. Also on April 6, 2010, the Chinese language Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 28, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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.
Pursuant to Rule 11(a) the Panel determines that
the language requirement has been satisfied through the Chinese language
Complaint and Commencement Notification and, absent a Response, determines that
the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <hyattgoldpassport.com> domain name is identical to Complainant’s HYATT GOLD PASSPORT mark.
2. Respondent does not have any rights or legitimate interests in the <hyattgoldpassport.com> domain name.
3. Respondent registered and used the <hyattgoldpassport.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hyatt Corporation, is a hotel management
company that began in 1957. Complainant
operates hotels in over forty-five countries, including
Respondent, La Duzi, registered the <hyattgoldpassport.com> domain name on August 24, 2000. The disputed domain name resolves to a website containing a search engine and hyperlinks to different third-party hotel management companies that compete with Complainant.
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 trademark registration with the USPTO
for its HYATT GOLD PASSPORT mark (e.g.,
Reg. No. 1,445,682 issued June 30, 1987).
While Respondent resides in
Complainant contends that Respondent’s <hyattgoldpassport.com>
domain name is identical to Complainant’s HYATT GOLD PASSPORT mark. Complainant alleges that Respondent removes
the spaces separating the terms of Complainant’s mark and adds the generic
top-level domain (“gTLD”) “.com.” The
Panel finds the removal of spaces and the addition of a gTLD are required for
any domain name and therefore finds that the disputed domain name remains
identical to Complainant’s mark. See
The Panel determines Policy ¶ 4(a)(i) is satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the <hyattgoldpassport.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the <hyattgoldpassport.com> domain name under Policy ¶ 4(c). 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Complainant alleges that Respondent is not commonly known by the <hyattgoldpassport.com> domain name. Complainant contends that Respondent is not licensed or authorized to use Complainant’s HYATT GOLD PASSPORT. Complainant further argues that Respondent is not affiliated with Complainant in any way. The WHOIS information identifies the domain name registrant as “La Duzi,” which Complainant claims is not similar to the <hyattgoldpassport.com> domain name. Respondent has failed to present any evidence that contradicts Complainant’s arguments and the Panel fails to find any evidence in the record that would allow the Panel to find that Respondent is commonly known by the disputed domain name. Consequently, the Panel holds that Respondent is not commonly known by the <hyattgoldpassport.com> domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); 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).
Complainant claims that Respondent uses the <hyattgoldpassport.com> domain name to resolve to a website featuring a search engine and third-party hyperlinks. Complainant contends that the third-party hyperlinks resolve to Complainant’s competitors in the hotel management business. Complainant alleges that Respondent receives click-through fees from the aforementioned hyperlinks. The Panel finds Respondent’s use of the <hyattgoldpassport.com> domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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 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 concludes that Policy ¶ 4(a)(ii) is satisfied.
Complainant asserts that Respondent’s <hyattgoldpassport.com> domain name resolves to a website containing a search engine and hyperlinks to Complainant’s competitors in the hotel management business. Complainant claims that Internet users interested in purchasing hotel services from Complainant may instead purchase those services from a competitor of Complainant solely because of Respondent’s use of the confusingly similar disputed domain name. The Panel determines Respondent’s use of the <hyattgoldpassport.com> domain name disrupts Complainant’s business, which constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors); 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).
Complainant argues that Respondent profits from the
aforementioned search engine and hyperlinks displayed on the website resolving
from the disputed domain name.
Complainant alleges that Respondent is operating a pay-per-click website
in which Respondent profits from the receipt of click-through fees. Complainant contends that Respondent is
attempting to profit from Internet users’ confusion as to Complainant’s
sponsorship of or affiliation with the <hyattgoldpassport.com>
domain name, resolving website, and featured hyperlinks. The Panel finds Respondent’s use of the <hyattgoldpassport.com>
domain name amounts to bad faith registration and use under Policy ¶ 4(b)(iv). See
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <hyattgoldpassport.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: April 30, 2010
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