Altour International, Inc. v. Hospitality Evaluation Systems, Inc
Claim Number: FA1103001378431
Complainant is Altour International, Inc. (“Complainant”), represented by Emily Bayton of Lewis and Roca LLP, Arizona, USA. Respondent is Hospitality Evaluation Systems, Inc (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <altourvacation.com> and <altourvacations.com>, registered with GoDaddy.com, Inc.
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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 16, 2011; the National Arbitration Forum received payment on March 17, 2011.
On March 18, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <altourvacation.com> and <altourvacations.com> domain names are registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the names. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. 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 March 24, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 13, 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@altourvacation.com and postmaster@altourvacations.com. Also on March 24, 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 April 14, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <altourvacation.com> and <altourvacations.com> domain names are confusingly similar to Complainant’s ALTOUR mark.
2. Respondent does not have any rights or legitimate interests in the <altourvacation.com> and <altourvacations.com> domain names.
3. Respondent registered and used the <altourvacation.com> and <altourvacations.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant provides travel-related services under its ALTOUR mark. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its ALTOUR mark (e.g., Reg. No. 3,045,911 issued January 17, 2006).
Respondent registered the <altourvacation.com> and <altourvacations.com> domain names on February 16, 2010. The disputed domain names resolve to websites containing click-through advertisements for third-party providers of competing travel-related services.
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 holds that Complainant has established rights in its ALTOUR mark under Policy ¶ 4(a)(i) by holding multiple trademark registrations with the USPTO for the ALTOUR mark (e.g., Reg. No. 3,045,911 issued January 17, 2006). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); see also Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”).
Complainant alleges Respondent’s <altourvacation.com> and <altourvacations.com> domain names are confusingly similar to Complainant’s ALTOUR mark. The disputed domain names incorporate Complainant’s entire mark and add the descriptive terms “vacation” or “vacations” and the generic top-level domain (“gTLD”) “.com.” The Panel finds these additions do not sufficiently distinguish the disputed domain names from Complainant’s mark. See Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”). The Panel further determines that Respondent’s <altourvacation.com> and <altourvacations.com> domain names are confusingly similar to Complainant’s ALTOUR mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the <altourvacation.com> and <altourvacations.com> domain names. 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 names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). See 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.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
Complainant contends that Respondent is not commonly known by the <altourvacation.com> and <altourvacations.com> domain names. Complainant argues that it has not authorized or licensed Respondent to use Complainant’s ALTOUR mark. The WHOIS information lists “Hospitality Evaluation Systems, Inc” as the registrant of the disputed domain names. Respondent has failed to present any evidence that contradicted Complainant’s claims and the Panel has failed to find any evidence in the record that would support a finding that Respondent is commonly known by the domain names. Therefore, the Panel holds that Respondent is not commonly known by the <altourvacation.com> and <altourvacations.com> domain names 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 Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant alleges that Respondent uses the <altourvacation.com> and <altourvacations.com> domain names to resolve to a website containing advertisements of Complainant’s competitors in the travel-related service industry. Complainant claims that Respondent receives click-through fees from these advertisements. The Panel determines that Respondent’s use of the confusingly similar disputed domain names for such a purpose is not 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). See Fox News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) (finding that the respondent’s use of the disputed domain name to generate revenue via advertisement and affiliate fees is not a bona fide offering of good or services); see also Skyhawke Techs., 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).”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
As previously noted, Respondent’s <altourvacation.com> and <altourvacations.com> domain names resolve to websites that contain advertisements relating to Complainant’s competitors. Internet users interested in Complainant’s travel-related services may purchase similar services from a competitor due to Respondent’s registration and use of the disputed domain names. The Panel finds Respondent’s use disrupts Complainant’s business, which constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See 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); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).
Complainant alleges, and the Panel presumes, that Respondent receives click-through fees from the aforementioned advertisements. Respondent thus profits from its use of the confusingly similar disputed domain names. Due to Respondent’s use of the confusingly similar <altourvacation.com> and <altourvacations.com> domain names Internet users will likely become confused as to Complainant’s affiliation with the disputed domain names and resolving websites. As Respondent is profiting from this confusion, the Panel concludes Respondent’s registration and use are evidence of bad faith under Policy ¶ 4(b)(iv). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name); see also Asbury Auto. Group, Inc. v. Tex. Int’l Prop. Assocs., FA 958542 (Nat. Arb. Forum May 29, 2007) (finding that the respondent’s use of the disputed domain name to advertise car dealerships that competed with the complainant’s business would likely lead to confusion among Internet users as to the sponsorship or affiliation of those competing dealerships, and was therefore evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
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 <altourvacation.com> and <altourvacations.com> domain names be TRANSFERRED.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: April 29, 2011
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