Choice Hotels International, Inc. v. Chin-Hui Wu
Claim Number: FA1101001370076
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Amy E. Salomon of Arent Fox LLP,Washington D.C., USA. Respondent is Chin-Hui Wu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chojcehotels.com>, registered with GoDaddy.com.
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 January 31, 2011; the National Arbitration Forum received payment on January 28, 2011.
On January 31, 2011, GoDaddy.com confirmed by e-mail to the National Arbitration Forum that the <chojcehotels.com> domain name is registered with GoDaddy.com and that Respondent is the current registrant of the name. GoDaddy.com has verified that Respondent is bound by the GoDaddy.com 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 January 31, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2011 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@chojcehotels.com. Also on January 31, 2011, 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 February 24, 2011, 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 (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:
1. Respondent’s <chojcehotels.com> domain name is confusingly similar to Complainant’s CHOICE HOTELS mark.
2. Respondent does not have any rights or legitimate interests in the <chojcehotels.com> domain name.
3. Respondent registered and used the <chojcehotels.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Choice Hotels International, Inc., owns and operates over 6,000 hotels in multiple countries. Complainant offers its hotel services under its CHOICE HOTELS mark which it has registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,717,062 issued May 20, 2003) and China’s State Intellectual Property Office (“SIPO”) (e.g., Reg, No. 1,349,850 issued December 28, 1999).
Respondent, Chin-Hui Wu, registered the <chojcehotels.com> domain name on May 14, 2005. The disputed domain name resolves to a website containing hyperlinks to Complainant’s competitors in the hotel reservation services business.
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 alleges that it has established rights in its CHOICE HOTELS mark based on its trademark registrations with the USPTO (Reg. No. 2,717,062 issued May 20, 2003) and SIPO (e.g., Reg, No. 1,349,850 issued December 28, 1999). In Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) and Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007), the panels found that a trademark registration with a federal trademark authority was sufficient to establish rights in a mark for purposes of Policy ¶ 4(a)(i). As the USPTO and SIPO are both federal trademark authorities, the Panel concludes that Complainant has established rights in its CHOICE HOTELS mark pursuant to Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <chojcehotels.com> domain name is confusingly similar to Complainant’s CHOICE HOTELS mark. In Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001), the panel found a common misspelling, the replacing of one letter for another, was insufficient to adequately distinguish a disputed domain name from a complainant’s mark. In the case at hand, the <chojcehotels.com> domain name replaces the letter “I” with the letter “j” in Complainant’s mark. The Panel finds such an exchange fails to adequately distinguish the domain name from the mark. Moreover, in U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007), the panel held that the removal of a space and the addition of a generic top-level domain (“gTLD”) both are irrelevant in a Policy ¶ 4(a)(i) analysis as spaces are not permissible in domain names and gTLDs are required. The <chojcehotels.com> domain name removes the spaces from Complainant’s mark and adds the gTLD “.com.” The Panel agrees with the established precedent and finds these changes to Complainant’s mark to be irrelevant for the purpose of Policy ¶ 4(a)(i). Thus, the Panel concludes that Respondent’s <chojcehotels.com> domain name is confusingly similar to Complainant’s CHOICE HOTELS mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied the requirements of Policy ¶ 4(a)(i).
Complainant has alleged that Respondent does not have any rights or legitimate interests in any of the <chojcehotels.com> domain name. In Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), the panel held that the burden shifts to the respondent to prove it does have rights or legitimate interests when the complainant makes a prima facie case in support of its allegations under Policy ¶ 4(a)(ii). In this case, the Panel finds Complainant made a sufficient prima facie case. In Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000), the panel held that a respondent’s failure to respond to the Complaint allows the Panel to infer that a respondent does not have rights or legitimate interests in a disputed domain name. However, this Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant claims Respondent is not commonly known by the <chojcehotels.com> domain name. In Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) and IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006), the panels found that a respondent was not commonly known by a domain name if the complainant did not authorize the respondent to use the mark, the WHOIS information is not similar to the domain name, and the respondent fails to present any evidence in support of being commonly known by the domain name. According to Complainant, Respondent has never been licensed or authorized to use Complainant’s CHOICE HOTELS mark or to use Complainant’s mark in a domain name. The WHOIS information identifies the domain name registrant as “Chin-Hui Wu,” which the Panel determines is not similar to the <chojcehotels.com> domain name. Finally, Respondent has not alleged any evidence, and the Panel fails to find any evidence in the record, that would support a finding that Respondent is commonly known by the disputed domain name. By applying the facts to the established precedent, this Panel concludes that Respondent is not commonly known by the <chojcehotels.com> domain name pursuant to Policy ¶ 4(c)(ii).
Complainant contends that Respondent’s use of the <chojcehotels.com> domain name to resolve to a website featuring competing hyperlinks is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate or noncommercial fair use pursuant to Policy ¶ 4(c)(iii). In Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) and Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007), the panels determined that the use of a disputed domain name to host competing hyperlinks does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. Consequently, the Panel concludes that Respondent’s use of the <chojcehotels.com> domain name does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate or noncommercial fair use pursuant to Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
Complainant avers that Respondent’s use of the <chojcehotels.com> domain name disrupts Complainant’s hotel business and constitutes bad faith registration and use under Policy ¶ 4(b)(iii). In Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) and St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007), the panels concluded that a respondent’s use of a disputed domain name to host competing hyperlinks constitutes bad faith registration and use. Respondent’s <chojcehotels.com> domain name resolves to a website that contains hyperlinks to Complainant’s competitors in the hotel reservation services business. As Internet users interested in Complainant’s hotel services may purchase hotel services from a competitor due to Respondent’s use of the confusingly similar domain name, Respondent’s use disrupts Complainant’s business. The Panel concludes that such a disruption constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
Complainant argues that Respondent commercially benefits from its use of the <chojcehotels.com> domain name by creating confusion as to Complainant’s affiliation with the domain name. In Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) and Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006), the panels found that the use of a domain name to resolve to a website with competing hyperlinks, from which the respondent likely receives click-through fees, constitutes bad faith registration under Policy ¶ 4(b)(iv) because the respondent would commercially benefit from confusion as to the complainant’s affiliation with the domain name. In this case, Respondent’s <chojcehotels.com> domain name resolves to a website containing the aforementioned hyperlinks. The Panel infers that Respondent receives click-through fees. Therefore, the Panel determines that Respondent’s use of the <chojcehotels.com> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
The Panel finds Complainant has satisfied the requirements of Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chojcehotels.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: March 9, 2011
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