Great
Claim Number: FA1004001320132
Complainant is Great
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <greatwolflodgehotel.com>, <greatwolfniagara.com> and <greatwolflodgewaterpark.com>, registered with Enom, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 19, 2010.
On April 20, 2010, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <greatwolflodgehotel.com>, <greatwolfniagara.com> and <greatwolflodgewaterpark.com> domain names are registered with Enom, Inc. and that Respondent is the current registrant of the names. Enom, Inc. has verified that Respondent is bound by the Enom, 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 April 23, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 13, 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@greatwolflodgehotel.com, postmaster@greatwolfniagara.com, and postmaster@greatwolflodgewaterpark.com. Also on April 23, 2010, the 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 May 21, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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" 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <greatwolflodgehotel.com>, <greatwolfniagara.com> and <greatwolflodgewaterpark.com> domain names are confusingly similar to Complainant’s GREAT WOLF LODGE mark.
2. Respondent does not have any rights or legitimate interests in the <greatwolflodgehotel.com>, <greatwolfniagara.com> and <greatwolflodgewaterpark.com> domain names.
3. Respondent registered and used the <greatwolflodgehotel.com>, <greatwolfniagara.com> and <greatwolflodgewaterpark.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Great Lakes Services, LLC, has established rights in the GREAT WOLF LODGE mark through its registration with the United States Patent and Trade Office (“USPTO”) (Reg. No. 2,643,850 issued October 29, 2002). Complainant has used the mark since 2000 in connection with entertainment services through water parks, hotels, resorts, conference center services and convention facilities.
Respondent registered the <greatwolflodgewaterpark.com>
and <greatwolflodgehotel.com> domain
names on April 25, 2005. Respondent registered the <greatwolfniagara.com> domain name on January 25, 2006. The disputed domain
names previously redirected Internet users to <niagrafallslocal.com>
with information and links to Complainant’s competitors. The disputed domain
names currently resolve to a website that promotes Respondent.
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.
Respondent registered the <greatwolflodgewaterpark.com> and <greatwolflodgehotel.com> domain names on April 25, 2005. Respondent registered the <greatwolfniagara.com> domain name on January 25, 2006.
Complainant asserts its rights in its GREAT WOLF LODGE mark
via its trademark registration with the USPTO (Reg. No. 2,643,850 issued
October 29, 2002). The Panel finds Complainant has established its rights in
the marks under Policy ¶ 4(a)(i) through its trademark
registrations with the USPTO. See SDC Media, Inc. v. SCMedia, FA 960250 (Nat. Arb. Forum
June 7, 2007) (holding that “[t]his trademark registration [with the USPTO]
establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding
that it is irrelevant whether the complainant has registered its trademark in
the country of the respondent’s residence).
Complainant argues that
Respondent’s <greatwolflodgewaterpark.com> and <greatwolflodgehotel.com> domain
names are confusingly similar to Complainant’s GREAT WOLF LODGE mark.
Complainant contends that the disputed domain names incorporate the entirety of
Complainant’s mark, remove the spaces between the terms in Complainant’s mark, add terms descriptive of Complainant’s business (“park” and
“hotel”) and a generic top-level domain (“gTLD”) (“.com”). The Panel
finds the alterations leave Respondent’s <greatwolflodgewaterpark.com>
and <greatwolflodgehotel.com> domain
names confusingly similar to Complainant’s mark pusuant to Policy ¶ 4(a)(i). See Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000)
(finding the <westfieldshopping.com> domain name confusingly similar
because the
Complainant argues that
Respondent’s <greatwolfniagara.com> domain name is confusingly similar to Complainant’s GREAT
WOLF LODGE mark. Complainant contends that the disputed domain name removes the
spaces separating the terms of Complainant’s mark, removes a term from
Complainant’s mark (“lodge”), adds a geographic term (“Niagara”), and adds a
generic top-level domain (“gTLD”) (“.com”). The Panel finds these alterations
are not enough to distinguish the disputed domain name from Complainant’s mark.
Therefore, the Panel finds Respondent’s <greatwolfniagara.com>
domain name
is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Westfield Corp. v. Hobbs, supra; see also Bond
& Co. Jewelers, Inc. v.
Complainant alleges that Respondent does not have any rights or legitimate interests in the <greatwolflodgehotel.com>, <greatwolfniagara.com> and <greatwolflodgewaterpark.com> domain names. Prior Panels have held that this allegation is sufficient to establish a prima facie case, which shifts the burden to Respondent to prove its rights and legitimate interests pursuant to Policy ¶ 4(a)(ii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (“Complainant has made a prima facie showing that Respondent lacks rights to the Domain Name. The threshold for making such a showing is quite low, since it is difficult to produce evidence to support a negative statement. Here, Complainant has alleged that Respondent does not own any rights in the terms STARWOOD or STARWOODS, and that Respondent’s use of the Domain Name is not a fair one. These unsupported assertions, though sparse, are sufficient to make a prima facie showing in regard to the legitimacy element.”); see also 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.”). Respondent has failed to respond to these proceedings, therefore the Panel may view the lack of response as proof of Respondent’s lack of rights and legitimate interest in the disputed domain name. However, the Panel may, in its discretion, choose to review the evidence to determine Respondent’s rights or legitimate interests under Policy ¶ 4(c). See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”)
The WHOIS information for the <greatwolflodgehotel.com>, <greatwolfniagara.com> and <greatwolflodgewaterpark.com> domain names lists “Niagara Falls Corp and Steve Alek” as registrant. Complainant alleges Respondent is not sponsored by or legitimately affiliated with Complainant in any way, nor that Respondent has never been given either authorization or license to use Complainant’s GREAT WOLF LODGE mark. The Panel finds that Respondent is not commonly known by any of the disputed domain names pursuant to 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 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).
Complainant asserts that Respondent’s disputed domain names
previously redirected Internet users to <niagrafallslocal.com>
with information about and third-party links to Complainant’s competitors. The
Panel presumes that Respondent profited through pay-per-click fees by operating
the website resolving from the <greatwolflodgehotel.com>, <greatwolfniagara.com>
and <greatwolflodgewaterpark.com> domain names. Therefore, the
Panel finds that Respondent was not using the disputed domain names in
connection with a bona fide offering
of goods or services under to Policy ¶ 4(c)(i) or legitimate noncommercial
or fair use of the domain names pursuant Policy ¶ 4(c)(iii). See
Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site); see also G.D. Searle & Co. v. Mahony, FA 112559 (Nat. Arb. Forum June 12, 2002) (finding the respondent’s use of the disputed domain name to solicit pharmaceutical orders without a license or authorization from the complainant does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i)).
Complainant asserts that Respondent’s disputed domain names currently resolve to a website that promotes Respondent’s music, unrelated to Complainant’s business. The Panel finds that Respondent’s diversion of Internet users to a website unrelated to Complainant via the <greatwolflodgehotel.com>, <greatwolfniagara.com> and <greatwolflodgewaterpark.com> domain names provides further evidence that Respondent was not using the disputed domain names in connection with a bona fide offering of goods or services under to Policy ¶ 4(c)(i) or legitimate noncommercial or fair use of the domain names pursuant Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)).
Respondent previously used the disputed domain names to redirect Internet users to <niagrafallslocal.com>
with information about and third-party links to Complainant’s competitors. This
Panel has previously found that Respondent’s <greatwolflodgehotel.com>,
<greatwolfniagara.com> and <greatwolflodgewaterpark.com> domain
names are confusingly similar to Complainant’s GREAT WOLF LODGE mark, and that Respondent
used the disputed domain names previously to display links to third-party
websites which include competitors of Complainant. The Panel finds that this
use disrupted Complainant’s business and 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 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).
This Panel has found Respondent likely profited from click-through fees through use of its disputed domain names when they previously resolved to a website with links to third-party competitors of Complainant. This Panel has also held that Respondent currently uses the disputed domain names to redirect Internet users to a website unrelated to Complainant’s business. The Panel presumes these uses created previously, and currently create, commercial gain for Respondent and thereby are evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain)).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <greatwolflodgehotel.com>, <greatwolfniagara.com> and <greatwolflodgewaterpark.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: May 25, 2010
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