Great
Claim Number: FA1007001335162
Complainant is Great
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <greatwolflodg.com>, <greatwolflog.com>, and <thegreatwolfresort.com>, registered with COMPANA, LLC.
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., s Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 13, 2010.
On July 16, 2010, COMPANA, LLC confirmed by e-mail to the National Arbitration Forum that the <greatwolflodg.com>, <greatwolflog.com>, and <thegreatwolfresort.com> domain names are registered with COMPANA, LLC and that Respondent is the current registrant of the names. COMPANA, LLC has verified that Respondent is bound by the COMPANA, LLC 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 16, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 5, 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@greatwolflodg.com, postmaster@greatwolflog.com, and postmaster@thegreatwolfresort.com by e-mail. Also on July 16, 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 16, 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <greatwolflodg.com> and <greatwolflog.com> domain names are confusingly similar to Complainant’s GREAT WOLF LODGE mark.
Respondent’s <thegreatwolfresort.com> domain name is confusingly similar to Complainant’s GREAT WOLF RESORTS mark.
2. Respondent does not have any rights or legitimate interests in the <greatwolflodg.com>, <greatwolflog.com>, and <thegreatwolfresort.com> domain names.
3. Respondent registered and used the <greatwolflodg.com>, <greatwolflog.com>, and <thegreatwolfresort.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Great Lakes Services, LLC and Great Wolf Resorts, Inc., is the owner and operator of several resort and hospitality locations featuring family recreational water parks, specialty restaurants, arcades, spas, and children’s activity areas. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office ("USPTO") for its GREAT WOLF LODGE (e.g., Reg. No. 2,643,850 issued October 29, 2002) and GREAT WOLF RESORTS marks (e.g., Reg. No. 3,046,968 filed April 27, 2004; issued January 17, 2006).
Respondent registered the <greatwolflodg.com>, <greatwolflog.com>, and <thegreatwolfresort.com> domain names from November 27, 2004 to February 15, 2005. Respondent’s disputed domain names resolve to websites that feature commercial search engines and that display third-party hyperlinks for both competing and unrelated websites.
Complainant offers
evidence that Respondent has a history of registering domain names that
infringe on the trademark rights of others and has been ordered by previous
UDRP panels to transfer the disputed domain names to the respective
complainants. See Usborne Publ’g Ltd. v.
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.
The Panel finds that Complainant has established rights in
its GREAT WOLF LODGE (e.g., Reg. No.
2,643,850 issued October 29, 2002) and GREAT WOLF RESORTS marks (e.g., Reg. No. 3,046,968 filed April 27,
2004; issued January 17, 2006) under Policy ¶ 4(a)(i) through its trademark
registrations with the USPTO. 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
Complainant contends
that Respondent’s <greatwolflodg.com> and <greatwolflog.com>
domain names are confusingly similar to Complainant’s GREAT WOLF LODGE
mark. Complainant contends that both of
the domain names contain the GREAT WOLF portion of its mark entirely and a
misspelled version of the LODGE portion of its mark by omitting the letter “e”
or the letters “g” and “e.” Complainant
further alleges that the omission of the spaces between the terms of its mark
and the affixation of the generic top-level domain (“gTLD”) “.com” are not
relevant to Policy ¶ 4(a)(i). The Panel
agrees and finds that Respondent’s disputed domain names are confusingly
similar to Complainant’s GREAT WOLF LODGE mark.
See Am. Int’l Group, Inc. v. Domain Admin. Ltd.,
FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are
impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’
or ‘.org,’ is required in domain names.
Therefore, the panel finds that the disputed domain name
[<americangenerallifeinsurance.com>]
is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Hallelujah Acres, Inc. v.
Complainant further argues that Respondent’s <thegreatwolfresort.com> domain name is confusingly similar to Complainant’s GREAT WOLF RESORTS mark because it contains Complainant’s mark entirely while adding the article “the,” deleting the spaces between the terms of the mark, deleting the letter “s,” and adding the gTLD “.com.” The Panel finds these alterations to Complainant’s mark fail to change the fact that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See supra Am. Int’l Group, Inc. v. Domain Admin. Ltd.; see also Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from the complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it); see also Marriott Int’l, Inc. v. Stealth Commerce, FA 109746 (Nat. Arb. Forum May 28, 2002) (“[T]he addition of the [article] ‘the’ to the beginning of the domain names fails to make them separate and distinct, as distinguishable from Complainant’s marks.”); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not possess rights and legitimate interests in the <greatwolflodg.com>, <greatwolflog.com>, and <thegreatwolfresort.com> domain names under Policy ¶ 4(a)(ii). Complainant is required to produce a prima facie case in support of these allegations. Once Complainant has produced a prima facie case the burden of proof shifts to Respondent to display that it does possess rights and legitimate interests in the disputed domain names. See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Panel finds that Complainant has established a prima facie case that Respondent lacks rights and legitimate interests in the <greatwolflodg.com>, <greatwolflog.com>, and <thegreatwolfresort.com> domain names. Respondent has failed to respond to these proceedings, and as such the Panel finds that it may infer that Respondent lacks rights and legitimate interests in the disputed domain names. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); 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.”). However, the Panel will analyze the evidence on record to determine whether Respondent has rights and legitimate interests in the disputed domain names under Policy ¶ 4(c).
Complainant contends that Respondent is not commonly known
by the disputed domain names. The WHOIS
information for each domain name identifies “Texas International Property
Associates” as the registrant.
Therefore, the Panel finds that Respondent is not commonly known by the
disputed domain names under Policy ¶ 4(c)(ii).
See Am. Online, Inc. v.
World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13,
2002) (finding that the respondent was not commonly known by
<aolcamera.com> or <aolcameras.com> because the respondent was
doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”);
see also Wells
Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the
WHOIS contact information for the disputed domain [name], one can infer that
Respondent, Onlyne Corporate Services11, is not commonly known by the name
‘welsfargo’ in any derivation.”).
Complainant argues that
Respondent’s disputed domain names resolve to websites that feature a
commercial search engine and various third-party links to both unrelated and
competing websites. Complainant contends
that Respondent receives click-through fees from the businesses advertised, and
linked-to, on Respondent’s website. The
Panel finds that such use of confusingly similar domain names 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 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 Meyerson v. Speedy Web,
FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has
failed to offer any goods or services on its website other than links to a
variety of third-party websites, it was not using a domain name in connection
with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or
a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Further,
Complainant argues that Respondent is taking advantage of common misspellings
of Complainant’s GREAT WOLF LODGE mark in the <greatwolflodg.com> and <greatwolflog.com>
domain names and is therefore engaged in typosquatting. The Panel finds that
Respondent’s use of typosquatting is further evidence that Respondent lacks
rights and legitimate interests in the domain names pursuant to Policy ¶
4(a)(ii). See Microsoft Corp. v. Domain Registration
The Panel finds that Policy ¶ 4(a)(ii) has been
satisfied.
Complainant argues and the Panel finds that Respondent has
been the respondent in other UDRP proceedings, where the disputed domain names
were ordered to be transferred from Respondent to the respective complainant’s
in those cases. See Usborne Publ’g Ltd. v.
Previous panels have found a respondent’s use of a
confusingly similar domain name resolving to a website featuring a search
engine and competing hyperlinks constitutes a disruption of a complainant’s
business. 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).
Respondent’s <greatwolflodg.com>, <greatwolflog.com>, and <thegreatwolfresort.com>
domain names feature search engines and
hyperlinks to Complainant’s competitors in the hospitality and family
entertainment resort industry. The Panel
finds Respondent’s use of the disputed domain names disrupts Complainant’s
hotel and resort business and constitutes bad faith registration and use under
Policy ¶ 4(b)(iii).
Complainant alleges, and the Panel infers, that Respondent profits from its receipt of click-through fees from its commercial search engines and various third-party hyperlinks to businesses both in competition with and unrelated to Complainant. Respondent is attempting to profit by creating a likelihood of confusion as to Complainant’s affiliation with the disputed domain names and resolving websites. Therefore, the Panel finds Respondent’s use of the disputed domain names constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also 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).
Furthermore, Respondent has engaged in typosquatting through its registration and use of the <greatwolflodg.com> and <greatwolflog.com> domain names, which are common misspellings of Complainant’s GREAT WOLF LODGE marks. Therefore, the Panel finds Respondent’s engagement in the practice of typosquatting additionally constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).
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 <greatwolflodg.com>, <greatwolflog.com>, and <thegreatwolfresort.com> domain names be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: August 24, 2010
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