Great
Claim Number: FA1006001332797
Complainant is Great
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <great-wolf-lodge.com>, registered with ABOVE.COM PTY LTD.
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 June 29, 2010.
On June 30, 2010, ABOVE.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <great-wolf-lodge.com> domain name is registered with ABOVE.COM PTY LTD. and that Respondent is the current registrant of the name. ABOVE.COM PTY LTD. has verified that Respondent is bound by the ABOVE.COM PTY LTD. 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 July 8, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 28, 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@great-wolf-lodge.com by e-mail. Also on July 8, 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 August 3, 2010, 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 "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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <great-wolf-lodge.com> domain name is confusingly similar to Complainant’s GREAT WOLF LODGE mark.
2. Respondent does not have any rights or legitimate interests in the <great-wolf-lodge.com> domain name.
3. Respondent registered and used the <great-wolf-lodge.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Great Lakes Services, LLC, operates resorts in
the
Respondent, Transure Enterprise Ltd c/o Host Master, registered the <great-wolf-lodge.com>
domain name on December 12, 2006. The
disputed domain name formerly resolved to a website that featured a reservation
system purportedly for Complainant’s
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.
As the panels in Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007), and Intel Corp. v. Macare, FA 660685
(Nat. Arb. Forum Apr. 26, 2006), found that the respective
complainants had established rights in the respective marks by registering the
marks with the USPTO, this Panel determines that Complainant has established
rights in its GREAT WOLF LODGE mark under Policy ¶ 4(a)(i) due to Complainant’s
registration of the mark with the USPTO (e.g.,
Reg. No. 2,643,850 issued October 29, 2002).
Moreover, the Panel holds that Complainant is not required to register the
GREAT WOLF LODGE mark within the country that
Respondent operates in; here, the
Complainant claims that Respondent’s <great-wolf-lodge.com> domain name is confusingly similar to Complainant’s GREAT WOLF LODGE mark. The disputed domain name removes the spaces separating the terms of the mark and replaces the spaces with hyphens. The disputed domain name also appends the generic top-level domain (“gTLD”) “.com” to Complainant’s mark. In Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007), the panel found that that the addition of a hyphen between terms of a registered mark did not differentiate the domain name from the mark. In U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007), the panel held that “[e]limination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).” Finally, in Gardline Surveys Ltd. v. Domain Financial Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003), the panel concluded that “[t]he addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.” Based on the decisions of past panels, this Panel concludes that Respondent’s <great-wolf-lodge.com> domain name is confusingly similar to Complainant’s GREAT WOLF LODGE mark pursuant to Policy ¶ 4(a)(i).
The Panel finds the elements of Policy ¶ 4(a)(i) have been satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the <great-wolf-lodge.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 <great-wolf-lodge.com> domain name under Policy ¶ 4(c). 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 Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Complainant claims that Respondent is not commonly known by the <great-wolf-lodge.com> domain name. The WHOIS information identifies the domain name registrant as “Transure Enterprise Ltd c/o Host Master,” which the Panel finds is not similar to the <great-wolf-lodge.com> domain name. Complainant asserts that Respondent is not affiliated with Complainant and that Complainant has not authorized or licensed Respondent to use the GREAT WOLF LODGE mark. Respondent has failed to respond to Complainant’s assertions and Respondent has failed to provide evidence in support of a finding that Respondent is commonly known by the disputed domain name. Based on the evidence in the record, the Panel finds Respondent is not commonly known by the <great-wolf-lodge.com> domain name pursuant to Policy ¶ 4(c)(ii). See 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); 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) .
According to Complainant, Respondent’s <great-wolf-lodge.com>
domain name formerly resolved to a website containing a reservation system that
purported to be that of Complainant’s
Complainant argues that Respondent currently utilizes the <great-wolf-lodge.com> domain name to host a hyperlink directory website. Complainant alleges that the hyperlinks featured on the website resolve to Complainant’s third-party competitors. Complainant contends that Respondent receives click-through fees from the pay-per-click links. The Panel finds Respondent’s use of the <great-wolf-lodge.com> domain name is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the <great-wolf-lodge.com> 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 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).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges that Respondent formerly hosted, and currently hosts, third-party hyperlinks on the website resolving from the <great-wolf-lodge.com> domain name. Complainant claims that the third-party hyperlinks resolve to Complainant’s competitors in the resort industry. Previous panels have found a respondent’s use of a disputed domain name to feature hyperlinks to a complainant’s competitors constitutes bad faith registration and use. 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). The Panel agrees with the decisions of prior panels and holds that Respondent’s use of the <great-wolf-lodge.com> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
Complainant contends that Respondent’s <great-wolf-lodge.com>
domain name formerly resolved to a website containing a reservation system and
hyperlinks. Complainant alleges that the
reservation system purported to be Complainant’s
The Panel finds 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 <great-wolf-lodge.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: August 11, 2010
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