Radisson Hotels International, Inc. v. PPA Media Services / Ryan G Foo
Claim Number: FA1311001528486
Complainant is Radisson Hotels International, Inc. (“Complainant”), represented by Elizabeth C. Buckingham of Dorsey & Whitney LLP, Minnesota, USA. Re-spondent is PPA Media Services / Ryan G Foo (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radission.com>, registered with Internet.bs Corp.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on November 5, 2013; the National Arbitration Forum received payment on November 6, 2013.
On November 10, 2013, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <radission.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs 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 14, 2013, the Forum served the Complaint and all Annexes, in-cluding a Written Notice of the Complaint, setting a deadline of December 4, 2013 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, admin-istrative, and billing contacts, and to postmaster@radission.com. Also on Nov-em-ber 14, 2013, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 10, 2013, 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 Not-ices, 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
Complainant is an internationally renowned hotel company that, through its affiliates, licensees and franchisees, operates more than 425 hotels in over 65 countries that are branded with its RADISSON mark.
Complainant holds a registration for the RADISSON service mark, on file with the United States Patent and Trademark Office ("USPTO") (Registry No. 920,862, registered September 21, 1971).
Respondent registered the <radission.com> domain name on August 22, 2000.
The domain name is confusingly similar to Complainant’s RADISSON mark.
Respondent has not been commonly known by the disputed domain name.
Complainant has never authorized Respondent’s use of its mark or a misspelling of the same.
The disputed domain name resolves to a website that contains hyperlinks, some of which resolve ultimately to <orbitz.com>, which competes with Complainant’s hotel business.
It may be presumed that Respondent benefits commercially from the Internet traffic redirected by Respondent to the linked sites.
Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
Respondent has no rights to or legitimate interests in the domain name.
Respondent is a frequent cyber-squatter who has established an extensive pat-tern of approximately 58 abusive domain name registrations.
Respondent’s registration and use of the contested domain name causes con-sumer confusion by capitalizing on the goodwill associated with Complainant’s RADISSON mark.
Respondent registered the disputed domain name with knowledge of Complain-ant and its rights in the RADISSON mark.
Respondent has both registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark 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."
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 can-celled 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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representa-tions 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 Verti-cal 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 reason-able inferences of fact in the allegations of a UDRP 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.”
Complainant has rights in the RADISSON service mark for purposes of Policy ¶4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005):
Complainant has established rights in the … mark through registration of the mark with … the United States Patent and Trademark Office (‘USPTO’).
This is true without regard to whether Complainant’s rights in its mark arise from its registration in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Chile). See, for example, Renais-sance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether a UDRP complainant has registered its trademark in the country in which a respondent resides, only that it can establish rights in its mark in some jurisdiction).
Turning to the central question arising under Policy ¶ 4(a)(i), we conclude from a review of the record that the <radission.com> domain name is confusingly similar to Complainant’s RADISSON service mark. The domain name incorporates a misspelling of the RADISSON mark and merely adds the generic Top Level do-main (“gTLD”) “.com”. These alterations of the mark, made in forming the do-main name, do not save the domain name from the realm of confusing similarity under the standards of the Policy. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004):
The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).
And, because every domain name requires a gTLD, that element of the domain name is inconsequential to our analysis under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to the mark of another in creating a domain name is irrele-vant to a Policy ¶ 4(a)(i) analysis).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that re-spondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been commonly known by the <radission.com> domain name, and that Complainant has never authorized Respondent’s use of its RADISSON service mark or a misspelling of the same. Moreover, the WHOIS record for the domain name identifies the registrant only as “PPA Media Ser-vices/Ryan G Foo,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that a respondent failed to estab-lish rights to or legitimate interests in the <emitmortgage.com> domain name where that respondent was not authorized to register domain names featuring a UDRP complainant’s mark and failed to submit evidence that it was commonly known by the domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use, in that the domain name resolves to a website featuring hyperlinks, some of which ultimately resolve to Orbitz.com, which operates in competition with the hotel business of Complainant. In the circumstances here presented, we may comfortably presume that Respondent benefits commercially from the Internet traffic thus directed to the linked sites. This employment of the domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a web-site that features links to various commercial websites from which Respondent presumably receives referral fees. . . . is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent has been the subject of more than fifty UDRP proceedings in which challenged domain names have been transferred away from it to various mark-holder complainants on grounds of bad faith registration and use of the involved domain names. See, for example, Homer TLC, Inc. v. PPA Media Services / Ryan G Foo, FA 1416637 (Nat. Arb. Forum January 13, 2012; and Google Inc. v. PPA Media Services / Ryan G Foo, FA 1468207 (Nat. Arb. Forum December 12, 2012). Under Policy ¶ (4)(b)(ii), this pattern stands as evidence of Respondent’s bad faith in the registration and use of the instant domain name. See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demon-strate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”).
We are likewise convinced by the evidence that Respondent has registered and is using the <radission.com> domain name, which we have found to be confus-ingly similar to Complainant’s RADISSON service mark, to profit by creating con-fusion among Internet users as to the possibility of Complainant’s association with the domain name. Under Policy ¶ 4(b)(iv), this further demonstrates Re-spondent’s bad faith in the registration and use of the domain name. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006):
Respondent is using the disputed domain name to operate a web-site which features links to competing and non-competing commer-cial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Finally under this head of the Policy, it is clear from the evidence that Respond-ent knew of Complainant and its rights in the RADISSON service mark when it registered the <radission.com> domain name. This is further proof of Respond-ent’s bad faith in registering the domain name. See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (finding that a UDRP respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual know-ledge of Complainant's mark when registering the disputed domain name").
Accordingly, the Panel finds that Complainant has met its obligations of proof under 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, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <radission.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 19, 2013
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