Two Flags Joint Venture, LLC v. Purple Bucquet
Claim Number: FA1010001355262
Complainant is Two Flags Joint Venture LLC (“Complainant”), represented by Susan L. Crane, New Jersey, USA. Respondent is Purple Bucquet (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ramadahotel.com>, registered with Power Brand Center Corp.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 28, 2010; the National Arbitration Forum received payment on October 28, 2010.
On November 2, 2010, Power Brand Center Corp. confirmed by e-mail to the National Arbitration Forum that the <ramadahotel.com> domain name is registered with Power Brand Center Corp. and that Respondent is the current registrant of the name. Power Brand Center Corp. has verified that Respondent is bound by the Power Brand Center Corp. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 5, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 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@ramadahotel.com. Also on November 5, 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 December 2, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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:
Complainant is the trademark holding company for Wyndham Wordwide Corporation and the owner of the RAMADA mark registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 854,323, issued August 6, 1968).
The RAMADA mark has been used since 1958 to promote Complainant’s hotel and lodging business.
Complainant licenses the mark to sister subsidiaries within the Wyndham family of companies.
Respondent registered the disputed domain name on Nov. 21, 2001.
The disputed domain name resolves to a website featuring links to Complainant’s business competitors.
Respondent presumably receives click-through fees for visits by Internet users to these displayed links.
Respondent’s <ramadahotel.com> domain name is confusingly similar to Complainant’s RAMADA trademark.
Respondent is not commonly known by the disputed domain name.
Respondent does not have any rights to or legitimate interests in the <ramadahotel.com> domain name.
Respondent registered and uses the <ramadahotel.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the RAMADA trademark under Policy ¶ 4(a)(i) via registration of the mark with a national trademark authority. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that a complainant had established rights to the MILLER TIME mark through its national trademark registrations); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant need not hold a registered trademark in Respondent’s country of residence. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether a complainant has registered its mark in the country of Respondent’s residence.).
Respondent’s <ramadahotel.com> domain name is confusingly similar to Complainant’s RAMADA trademark. The disputed domain name uses Complainant’s entire mark and merely adds to it the descriptive term “hotel” and the generic top-level domain name (“gTLD”) “.com.” These differences failed to distinguish the disputed domain name from the Complainant’s mark under the Policy. See Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several domain names incorporating a complainant’s entire EXPERIAN mark and merely adding the term “credit” were confusingly similar to the mark); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007):
The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.
The Panel therefore finds that Respondent’s domain name <ramadahotel.com> is confusingly similar to Complainant’s RAMADA trademark under Policy ¶ 4(a)(i).
Once Complainant has met its burden of proof by making out a prima facie case against Respondent on the point of Respondent’s rights to and interests in the contested domain name, the burden shifts to Respondent to prove that it has rights to or legitimate interests in the domain under Policy ¶ 4(a)(ii). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), finding that:
complainant must first make a prima facie case that respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to respondent to show it does have rights or legitimate interests.
Because Respondent has failed to respond to the Complaint filed in this proceeding, we may assume that it does not have rights to or legitimate interests in the disputed <ramadahotel.com> domain name. 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.
However, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny, that Respondent is not commonly known by the disputed domain name. Moreover, the pertinent WHOIS information does not indicate that the Respondent is commonly known as <ramadahotel.com>. On this record, we must conclude that that Respondent is not commonly known by the <ramadahotel.com> domain name so as to have demonstrated that it has rights to or legitimate interests in the contested 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 a 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 a respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the relevant WHOIS information, suggesting that that respondent was commonly known by the disputed domain name)
We also observe that Complainant asserts, without objection from Respondent, that Respondent uses the contested domain name to post a directory of links that resolve to the websites of Complainant’s business competitors. In the circumstances here presented, we may comfortably presume that Respondent collects click-through fees by virtue of the visits of Internet users to the resolving websites. Therefore, Respondent is not using the disputed domain name to engage in a bona fide offering of goods or services under Policy ¶ 4(c)(i) or to make a legitimate non-commercial or fair use of the <ramadahotel.com> domain name pursuant to Policy ¶ 4(c)(iii). See 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 contested 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)); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that a respondent’s use of a disputed domain name to redirect Internet users to commercial websites unrelated to a complainant, and presumably with the purpose of receiving a commission or pay-per-click referral fee, did not evidence rights to or legitimate interests in a disputed domain name).
The Panel thus finds that Complainant has met the requirements of Policy ¶ 4(a)(ii).
Respondent’s domain name, which is confusingly similar to Complainant’s RAMADA trademark, resolves to a website featuring links to the websites of business competitors of Complainant. Respondent thus disrupts Complainant’s business by diverting Internet users looking for its Complainant’s services. This constitutes bad faith registration and use of the contested domain name under Policy ¶ 4(b)(iii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that a respondent registered and used disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii) by using them to operate websites that competed with a complainant’s business); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007):
This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
Respondent presumably receives click-through fees from the visits of Internet users to the websites to which it carrries links. Respondent thus attempts to profit by confusing Internet users seeking Complainant’s services as to the possibility of Complainant’s sponsorship of, or affiliation with, the disputed domain name, and then diverting them to the websites of Complainant’s commercial competitors. Respondent’s use of the contested <ramadahotel.com> domain name in this manner evidences bad faith registration and use of the domain under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that a respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to a complainant’s mark to offer links to third-party websites that offered services similar to those offered by that complainant); see also AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that a respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and a complainant’s AOL mark, which indicated bad faith registration and use of the domains pursuant to Policy ¶ 4(b)(iv))
For these reasons, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <ramadahotel.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 15, 2010
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