Best Western International, Inc. v. Guy Hindley
Claim Number: FA1410001586532
Complainant is Best Western International, Inc. (“Complainant”), represented by Kevin N. Tharp of Riley Bennett & Egloff, LLP, Indiana, USA. Respondent is Guy Hindley (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain names at issue are <bestwestern.holiday> and <bestwestern.vacations>, registered with Godaddy LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 23, 2014; the National Arbitration Forum received payment on October 23, 2014.
On October 24, 2014, Godaddy LLC confirmed by email to the National Arbitration Forum that the <bestwestern.holiday> and <bestwestern.vacations> domain names are registered with Godaddy LLC and that Respondent is the current registrant of the names. Godaddy LLC has verified that Respondent is bound by the Godaddy LLC 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 October 27, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 17, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@bestwestern.holiday, postmaster@bestwestern.vacations. Also on October 27, 2014, 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 November 25, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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
Complainant states that it is the world’s largest hotel brand, providing hotel reservation and brand identity services for approximately 4,000 hotels worldwide, including nearly 300 hotels in the United Kingdom. Complainant owns various trademarks used in connection with these services, including BEST WESTERN, which is the subject of longstanding registrations in the United States, the European Community, and numerous other countries.
Respondent registered the disputed domain names <bestwestern.holiday> and <bestwestern.vacations> in 2014. Complainant contends that these domain names are confusingly similar to its BEST WESTERN mark, differing only in the omission of the space and the addition of generic top-level domains that are closely related to the hotel services provided by Complainant.
Complainant asserts that Respondent is not commonly known by the domain names or the term BEST WESTERN, and in fact does business under the name “Ribblesdale Park,” providing travel rental and cottages. Complainant states that it has not authorized Respondent to use its mark for any purpose, and that neither of the disputed domain names resolves to an active website. On these grounds Complainant contends that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant alleges that Respondent must be familiar with Complainant, which is the largest family of hotels in the world and has 284 hotels in the United Kingdom. Complainant notes that Respondent has also registered domain names that incorporate other well-known hotel brands, including <fourseasons.holiday>, <ramada.holiday>, <ritz.holiday>, <trump.holiday>, and <wyndham.holiday>, and alleges that these registrations demonstrate Respondent’s plan to attract Internet users to Respondent’s website for commercial gain by creating a likelihood of confusion with the corresponding trademarks. On these grounds Complainant contends that Respondent registered and is using the disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain names are identical or confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and have been used 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 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.
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.”).
The disputed domain names differ from Complainant’s registered trademark only in the omission of a space and the addition of generic top-level domains. These alterations do not diminish the similarity between the domain names and Complainant’s mark. See, e.g., Best Western Int’l Inc. v Walter Wieczorek, FA 96557 (Nat. Arb. Forum Mar. 27, 2001) (finding <bestwestern.tv> identical to and confusingly similar to BEST WESTERN). The Panel finds that the disputed domain names are identical or confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names. Respondent has failed to come forward with any evidence of such rights or interests, nor is any such evidence apparent to the Panel. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and have been used in bad faith. Under paragraph 4(b)(ii) of the Policy, bad faith may be shown by evidence that a domain name was registered “in order to prevent the owner of the trademark or service mark from reflecting the mark in
a corresponding domain name, provided that [Respondent] ha[s] engaged in
a pattern of such conduct.” Under paragraph 4(b)(iv), bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s registration of domain names corresponding to Complainant’s famous mark, with the addition of generic top-level domains closely related to the services offered by Complainant, especially when considered in light of the fact that Respondent himself is a competitor of Complainant, is indicative of an attempt to profit from confusion with Complainant’s mark. Respondent’s pattern of similar registrations involving other well-known marks serves as further evidence of bad faith. The Panel finds that the disputed domain names were registered and have been used in bad faith pursuant to paragraphs 4(b)(ii) and 4(b)(iv) of the Policy.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bestwestern.holiday> and <bestwestern.vacations> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 26, 2014
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