Radisson Hotels International, Inc. v. Ron Schumaker
Claim Number: FA1103001378649
Complainant is Radisson Hotels International, Inc. (“Complainant”), represented by Elizabeth C. Buckingham of Dorsey & Whitney LLP, Minnesota, USA. Respondent is Ron Schumaker (“Respondent”), Ohio, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radissonbluhotel.net>, registered with TUCOWS, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 17, 2011; the National Arbitration Forum received payment on March 18, 2011.
On March 18, 2011, TUCOWS, INC. confirmed by e-mail to the National Arbitration Forum that the <radissonbluhotel.net> domain name is registered with TUCOWS, INC. and that Respondent is the current registrant of the name. TUCOWS, INC. has verified that Respondent is bound by the TUCOWS, 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 18, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 7, 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@radissonbluhotel.net. Also on March 18, 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 13, 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 <radissonbluhotel.net> domain name is confusingly similar to Complainant’s RADISSON mark.
2. Respondent does not have any rights or legitimate interests in the <radissonbluhotel.net> domain name.
3. Respondent registered and used the <radissonbluhotel.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Radisson Hotels International, Inc., is an international hotel company. Complainant uses the RADISSON mark in connection with its hotel, bar, and restaurant services. In addition, Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the RADISSON mark (e.g., Reg. No. 920,862 issued September 21, 1971). Complainant also owns the <radissonblu.com> domain name.
Respondent, Ron Schumaker, registered the <radissonbluhotel.net> domain name on December 16, 2010. The disputed domain name resolves to a website for a fictitious hotel. The resolving website also prominently features Complainant’s RADISSON mark and images of Complainant’s actual hotels.
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 claims rights in the RADISSON mark through its registrations of the mark with the USPTO (e.g., Reg. No. 920,862 issued September 21, 1971). The Panel finds these trademark registrations sufficiently prove Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). 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 Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)).
Complainant contends the <radissonbluhotel.net> domain name is confusingly similar to its RADISSON mark. Respondent replicates Complainant’s mark in the disputed domain name and then merely attaches the descriptive terms “blu” and “hotel,” terms that refer to Complainant’s hotels. Respondent also affixes the generic top-level domain (“gTLD”) “.com” to Complainant’s mark in the disputed domain name. The Panel finds that attaching descriptive terms and a gTLD to a mark do not sufficiently distinguish a domain name from the 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 Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Therefore, the Panel concludes Respondent’s <radissonbluhotel.net> domain name is confusingly similar to Complainant’s RADISSON mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first make a prima facie case establishing Respondent lacks rights and legitimate interests in the <radissonbluhotel.net> domain name pursuant to Policy ¶ 4(a)(ii). The burden then shifts to Respondent to demonstrate it has rights or legitimate interests in the disputed domain name. The Panel may infer from Respondent’s failure to submit a Response that Respondent lacks rights or legitimate interests. 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 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.”). Despite Respondent’s failure to respond, the Panel will analyze the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts Respondent is not a licensee or subsidiary of Complainant. Complainant also asserts it has never authorized Respondent to use its RADISSON mark. Furthermore, the WHOIS information lists “Ron Schumaker” as the registrant of the disputed domain name, which the Panel finds is not similar to the <radissonbluhotel.net> domain name. Therefore, without evidence to the contrary, the Panel determines Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); 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 claims Respondent uses the <radissonbluhotel.net> domain name to resolve to a website for a fictitious hotel. Complainant alleges the resolving website contains copies of the content from the African hotel chain Protea Hotels, the website for Hotel Services, Inc., and the website for Amsterdam RAI. Complainant further alleges Respondent’s resolving website contains photographs of Complainant’s “Radisson Blu” hotels located in Milan, Italy and Riga, Latvia. In addition, a screen shot of the resolving website shows a site that prominently displays Complainant’s RADISSON mark as well as provides information about “Africa’s largest and leading hotel group, Radisson Blu Hotel.” Based on the evidence in the record, the Panel concludes Respondent uses the disputed domain name in an attempt to pass itself off Complainant. Therefore, the Panel finds Respondent does not use the <radissonbluhotel.net> domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(iii) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that the enumerated factors in Policy ¶ 4(b) are not exhaustive and the totality of the circumstances may be considered when analyzing bad faith registration and use under Policy ¶ 4(a)(iii). See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence).
As previously discussed, Respondent uses the disputed domain name to resolve to a website that prominently features Complainant’s RADISSON mark as well as images of Complainant’s hotels. The Panel finds Respondent’s attempt to pass itself off as Complainant qualifies as registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”); see also Target Brands, Inc. v. JK Internet Servs., FA 349108 (Nat. Arb. Forum Dec. 14, 2004) (finding bad faith because the respondent not only registered Complainant’s famous TARGET mark, but “reproduced . . . Complainant’s TARGET mark . . . [and] added Complainant’s distinctive red bull’s eye [at the domain name] . . . to a point of being indistinguishable from the original.”).
The Panel finds Complainant has satisfied 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 <radissonbluhotel.net> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: April 26, 2011
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