Radisson Hotels
International, Inc. v. Uee Gleb
Claim Number: FA0811001233302
PARTIES
Complainant is Radisson Hotels International,
Inc. (“Complainant”),
represented by Elizabeth C. Buckingham, of Dorsey & Whitney LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radissonescort.com>, registered with Estdomains,
Inc.
PANEL
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.
Paul M. DeCicco as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on November 10, 2008; the
National Arbitration Forum received a hard copy of the Complaint on November 11, 2008.
On November 21, 2008, Estdomains, Inc. confirmed by email to the National
Arbitration Forum that the <radissonescort.com> domain name is registered with Estdomains, Inc. and that the Respondent is the current
registrant of the name. Estdomains, Inc. has verified that Respondent is bound by the
Estdomains,
Inc. 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 November 24, 2008, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of December 15, 2008 by which
Respondent could file a Response to the Complaint, was transmitted to
Respondent via email, post and fax, to all entities and persons listed on
Respondent’s registration as technical, administrative and billing contacts, and
to postmaster@radissonescort.com by
email.
Respondent’s Response was received in electronic copy on November 28, 2008; however no hard copy was received prior to
the Response deadline. Thus the National
Arbitration Forum does not consider the Response to be in compliance with ICANN
Rule 5.
On December 18, 2008, pursuant to Complainant’s request to have the
dispute decided by a single-member Panel, the National Arbitration Forum
appointed Paul M. DeCicco as Panelist.
On December 19, 2008 the National Arbitration Forum received Complainant’s
additional submission in a timely manner according to
Supplemental Rule 7.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends as follows:
Complainant bases this Complaint on its RADISSON service mark which past UDRP decisions
have characterized as both a famous and well known service mark. The RADISSON mark
has been used in connection with hotel services offered by Complainant or its
predecessors since at least 1909, and is still used for hotel, resort, and
related services around the globe. The RADISSON mark is identified solely and
exclusively with Complainant, a unit of Carlson Hotels Worldwide and a subsidiary
of Carlson Companies, Inc.
Complainant is the owner of the United States Registration No.
920,862 for the RADISSON mark for the multiple services. Complainant owns
approximately 250 pending applications or issued registrations throughout the world
that consist of or contain the RADISSON mark. Complainant and its affiliates
also own over 600 domain name registrations containing the RADISSON mark.
This proceeding concerns
the <radissonescort.com> domain name, registered by Respondent on
February 14, 2008. The domain name resolves to a website promoting an escort
service based in
The
Complaint arises out of the bad faith registration and use by Respondent of
<radissonescort.com>, which is identical or confusingly similar to
the distinctive and famous RADISSON service marks and the numerous RADISSON
domain names owned and used by Complainant.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent registered a domain name that is identical to Complainant's famous RADISSON mark with actual or constructive knowledge of Complainant's mark and is using the disputed domain name, Respondent is intentionally attempting to attract, for commercial gain, Internet users to its web site. The at-issue domain name creates a likelihood of confusion with the Complainant's mark. Respondent's domain name registration and the website to which it resolves amounts to "pornosquatting," and such use is likely to tarnish or dilute Complainant's famous RADISSON mark.
Complainant currently operates a
RADISSON hotel in
Due to Complainant's extensive use and promotion in connection with hotels around the world, the term RADISSON has become associated exclusively with Complainant as its service mark and has no independent dictionary meaning. Therefore, Respondent has no reason to choose this name except to create an impression of an association with or to trade off of the goodwill of the Complainant.
Respondent is not a
licensee or subsidiary of Complainant. Respondent has never been authorized to
use Complainant's mark. Complainant's prior rights in the mark precede
Respondent's registration of the domain name; and Respondent is not commonly
known by the domain name in question.
Respondent is not making a
legitimate noncommercial or fair use of the domain name and Respondent's domain
name is likely to tarnish or dilute Complainant's mark by bringing the RADISSON
mark into association with adult escort services.
The term RADISSON is not a
descriptive word in which Respondent might have a claim to rights or use.
Respondent's only connection with the RADISSON mark has been its registration
and use of the disputed domain name, which does not demonstrate Respondent's
rights under Paragraph 4(a)(ii) of the Policy.
Complainant asserts that
Respondent registered and used the domain name in bad faith on several grounds.
In sum, the notoriety of Complainant's RADISSON mark, Respondent's lack of any
connection to Complainant, and the fact that Respondent
registered a domain name that incorporates Complainant's RADISSON in its
entirety all indicate bad faith.
First, in light of the
notoriety of Complainant's RADISSON mark, Respondent had actual or constructive
knowledge of such mark at the time of its registration. Registration with
actual or constructive knowledge of Complainant's marks is evidence of bad
faith pursuant to Paragraph 4(b) of the Policy. Even the most
perfunctory trademark or domain name availability search would have discovered
that Complainant had registered numerous trademarks and domain names
incorporating the RADISSON mark. Further, given that the Respondent is located
in the
Respondent's decision to
register a domain name that contains
the RADISSON mark and the word "escort" results in the dilution of
Complainant's famous RADISSON mark, while confusing Internet users as to the
source or sponsorship of the <radissonescort.com>
domain name. Finally, Respondent is using the RADISSON mark for its own
commercial gain, through fees generated by the escort services offered on the
website referenced by <radissonescort.com>. Nowhere on the actual website, other than in
the domain name, is the term RADISSON used.
Respondent's registration also amounts to "pornosquatting." The RADISSON mark is used in connection with adult escort services, which are clearly commercial in nature. The risk of disparagement of the famous, highly-regarded RADISSON mark is greatly increased by the association of the RADISSON mark with the sale of sexual services, which are not legal in many, if not most, jurisdictions around the world.
B. Respondent
Respondent contends as follows:
Respondent real name is Olga Radisson and that is why she named her web site Radisson Escort and bought domain name <radissonescort.com>. Complainant doesn’t provide sexual services only escort-dating service. Respondent only takes money from advertising on her web site. Respondent's father and grandfather have the surname “Radisson,” as well as Respondent. Respondent's passport shows that her real name is “Olga Radisson.”
C. Additional Submissions
In its additional submission Complainant contends as follows:
On
November 28, 2008, "Olga Radisson" sent an email message to the
dispute resolution provider. The case coordinator replied to "Olga
Radisson." Respondent's email message should not be considered and the
case should be decided solely on the basis of the Complaint.
The
email from Respondent does not comply with ICANN UDRP or the dispute resolution
provider's requirements. The dispute resolution provider invited "Olga
Radisson" to send an email confirming that the November 28, 2008 email
constituted her complete response or to submit a formal Response that is
compliant with ICANN UDRP and the dispute resolution provider's requirements.
Respondent did not reply nor was a formal Response filed by the deadline. The
email from Respondent does not comply with ICANN Rule 5(b), and no weight
should be given. Accordingly, the Panel should consider the merits of this case
based solely on the Complaint and enter a default judgment against Respondent.
The
party who sent the email message to the dispute resolution provider has no
standing to respond even if the panel exercises its discretion and considers
the email from Olga Radisson; the party who sent the email is not the
Respondent, and therefore, has no standing to file a Response. The WHOIS
information for the disputed domain name in this case identifies Uee Gleb as
the domain name registrant. Therefore, the proper Respondent in this proceeding
is Uee Gleb, not "Olga Radisson."
Even
if Respondent satisfies the standing requirement or if the Panel considers the
Olga Radisson email, Respondent has no rights or legitimate interests in
Complainant's mark. Respondent cannot
satisfy any of the UDRP circumstances, even assuming the email is considered.
Respondent has not used the disputed domain name in connection with a bona
fide offering of goods or services. Respondent is using the website
referenced by the disputed domain name to promote and solicit customers for an
escort service. Nowhere on the website does the term RADISSON appear except in
the domain name and in the website header at the top of the page.
The
improper third-party respondent "Olga Radisson" alleges that:
"My real name is Olga Radisson[. T]hat's why I named my web site Radisson
Escort and bought domain name radissonescort.com.... Also my farther [sic] and
grandfather have surname Radisson too.... [W]e have these surname more than 150
years!" Notwithstanding such claims, there is no mention of the proper
Respondent Gleb's association with the alleged Radisson family. Accordingly,
Complainant reasserts that Respondent had no reason to incorporate the RADISSON
mark in the domain name except to create an impression of an association with
or to trade off of the goodwill of the Complainant. Accordingly, the Panel
should draw the inference that Respondent chose the disputed domain name based
on Complainant's famous RADISSON trademark.
Given
that "Olga Radisson" is not the proper respondent and has not
demonstrated or alleged beneficial ownership of the domain name, her allegation
that Radisson is her given surname does not have any bearing on this matter. Gleb
is presumably the surname of the proper Respondent and there is no indication
that Uee Gleb is currently or has ever been known by the name RADISSON.
While
in some circumstances, panels have denied transfer of a domain name that
contains or consists solely of a Respondent's surname, the common thread among
these cases is that the domain name was used solely for non-commercial purposes
such as creating family email addresses or a website devoted to the
registrant's family or Respondent was able to demonstrate interest in the
disputed domain name in that it is his surname and he has been using the name
in connection with a business for several years prior to the dispute. No
similar circumstances exist here.
"Olga
Radisson" also admits that the <radissonescort.com> site is
used for purely commercial gain. She
admits that she only takes money from advertisements thus she is using the
domain name for commercial gain and in a manner that tarnishes Complainant's
famous mark. Therefore, Respondent has no legitimate interest in the domain
name.
Finally, Complainant contends in its additional submission
that from a pure policy standpoint, if the Panel were to accept "Olga
Radisson's" surname
defense, then future Respondents will be empowered to lodge a surname defense
after-the-fact in virtually any like UDRP proceeding by finding a person with
the same surname and then posing as that person for
purposes of defending the UDRP.
FINDINGS
Complainant has rights in a trademark which
is confusingly similar to the at-issue domain name.
The only response to the Complaint was
submitted by someone other than the nominal registrant.
Respondent lacks rights or legitimate
interests in the disputed domain name.
Respondent/registrant registered and is using
the domain name in bad faith.
There is no credible evidence in support of
denying the Complainant’s request to transfer the domain name.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution
Policy (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.”
Paragraph 4(a) of the Policy requires that the Complainant must prove
each of the following three elements to obtain an order that a domain name
should be canceled or transferred:
(1) the domain name registered by the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
As a preliminary matter the Panel
considered that the Response is formally defected in that there was no timely
hard copy and further that the responding party was not the nominal registrant.
However, the Panel nevertheless recognizes the informal response in view of the
maxim that “the law abhors a default” and thereby relaxes the fact that this
proceeding is primarily administrative in nature. See for example
Garces v. Bradley, 299 A.2d 142, 144 (D.C. 1973) (recognizing well-settled rule
that the "law abhors a default, and the corollary of the rule [is] that
dispositions on the merits are favored"). Also see, J.W. Spear & Sons PLC v. Fun League
Mgmt., FA 180628 (Nat. Arb. Forum Oct. 17, 2003) (finding
that where respondent submitted a timely response electronically, but failed to
submit a hard copy of the response on time, “[t]he
Panel is of the view that given the technical nature of the breach and the need
to resolve the real dispute between the parties that this submission should be
allowed and given due weight”).
Complainant demonstrates that it has trademark rights in
its RADISSON mark for purposes of Policy ¶ 4(a)(i) through its trademark
registration with the USPTO (Reg. No. 920,862, issued on September 21, 1971). See Vivendi Universal Games v.
XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003)
(“Complainant's federal trademark registrations establish Complainant's rights
in the BLIZZARD mark.”).
Respondent’s
<radissonescort.com> domain
name is confusingly similar to Complainant's RADISSON mark. The <radissonescort.com>
domain name differs from Complainant’s
mark only in that the term “escort” has been added to the end of the mark; and
that the generic top-level domain (gTLD) “.com” is thereafter appended. It is well settled that
the addition of a descriptive term such as “escort” does not sufficiently
distinguish a domain name from an incorporated mark for the purposes of Policy
¶ 4(a)(i). See Brambles Indus. Ltd. v. Geelong Car Co. Pty. Ltd.,
D2000-1153 (WIPO Oct. 17, 2000) (finding that the domain name
<bramblesequipment.com> is confusingly similar because the combination of
the two words "brambles" and "equipment" in the domain name
implies that there is an association with the complainant’s business). Likewise, it is a black letter rule in UDRP
proceedings that the addition of .com, .net .org or the like gTLD is
insufficient to distinguish a domain name from the mark it incorporates, since
every domain name must include a top-level domain. See 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.”). Therefore, the Panel
finds that Respondent’s disputed domain name is confusingly similar to
Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Additionally, the Respondent makes no contentions regarding this section
of the Policy thereby admitting by silence that it agrees with Complainant’s
position.
Respondent is not commonly known
by the disputed domain name. The WHOIS record for the disputed domain name
lists Respondent as “Uee Gleb” despite Respondent’s contentions that the real Respondent is “Olga
Radisson.” Complainant has not authorized Respondent to use its RADISSON mark.
The self-serving contention by “Olga Radisson” that she is the real party in
interest is given little or no weight and Complainant offers evidence that
Respondent is using the disputed domain name for a website that among other
things displays pay-per-click advertising links targeting Internet users likely
seeking Complainant’s mark. Therefore, Complainant has made a prima facie showing that Respondent
lacks rights and legitimate interests in respect of the disputed domain name.
The burden thus shifts to Respondent to come forward with concrete evidence of
its rights or legitimate interest in the domain name. See, e.g., GMAC LLC v. WhoisGuard Protected, FA 942715 (Nat. Arb.
Forum May 9, 2007).
Respondent, ostensibly through
the email response of Olga Radisson, contends that it has rights or interests
in the disputed domain name because RADISSON is the real registrant’s surname and
that she is using the domain name solely to identify herself as the source of
services connected with the at-issue domain name. As mentioned above, the email bearing the self-serving after-thought
that someone with the surname RADISSON is the real party in interest is
tenuous. The slight “evidence” reviewed in favor of the Respondent's position
is easily fabricated and as Complainant points out, a finding in favor of Respondent given the character and weight of
the evidence presented here would invite fraud in virtually every UDRP
proceeding. Therefore, the Panel finds that the emailed story is contrived and
that it is more likely than not that the nominal registrant registered and uses
the at-issue domain name because of the notoriety of Complainant's mark, rather
than in spite of it.
Likewise, Respondent’s contention that the <radissonescort.com> domain name was registered for the purpose
of advertising the Respondent's business is ineffective to demonstrate Respondent's
rights or interest in the at-issue domain name. Respondent claims that because
the disputed domain name describing
Respondent’s business is used to advertise Respondent’s business, Respondent is
thereby using the <radissonescort.com> domain name for a bona fide offering of goods or services under Policy ¶4(c)(i). However, such use of the <radissonescort.com> domain name is neither a bona fide offerings of goods or services
under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair uses under Policy
¶ 4(c)(iii). See Seiko Kabushiki Kaisha v. CS into
Tech, FA 198795 (Nat. Arb. Forum Dec. 6,
2003) (“Diverting customers, who are looking for products relating to the
famous SEIKO mark, to a website unrelated to the mark is not a bona fide
offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a
noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Given the foregoing, Respondent
fails to meet its burden to demonstrate rights or legitimate interest in the
disputed domain name and the Panel concludes that Respondent has no rights or interest therein.
Respondent runs an escort service at
a website referred by the disputed domain name. Respondent likely commercially gains
by diverting some number of Internet users searching for Complainant’s business
to Respondent’s website. Without having any right to use Complainant's mark,
this activity demonstrates Respondent's use of the disputed domain name for
commercial gain by exploiting a likelihood of confusion with Complainant’s
mark. Pursuant to Policy ¶ 4(b)(iv), it shows Respondent’s registration and use
of the disputed domain name is in bad faith.
See Am. Univ. v. Cook, FA 208629 (Nat.
Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that
incorporates another's mark with the intent to deceive Internet users in regard
to the source or affiliation of the domain name is evidence of bad faith.”).
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <radissonescort.com> domain name be TRANSFERRED from
Respondent to Complainant.
Paul M, DeCicco, Panelist
Dated: Dec 30, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum