Choice Hotels International, Inc. v. Jamshed Hasan / DomainFav
Claim Number: FA1510001644582
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Thorne Maginnis of Arent Fox LLP, District of Columbia, USA. Respondent is Jamshed Hasan / DomainFav (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <choicehotels.xyz> and <choicehotels.top>, registered with 101domain, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 29, 2015; the Forum received payment on October 29, 2015.
On October 30, 2015, 101domain, Inc. confirmed by e-mail to the Forum that the <choicehotels.xyz> and <choicehotels.top> domain names are registered with 101domain, Inc. and that Respondent is the current registrant of the names. 101domain, Inc. has verified that Respondent is bound by the 101domain, 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 November 2, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 23, 2015 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@choicehotels.xyz, postmaster@choicehotels.top. Also on November 2, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On November 30, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 has registered the CHOICE HOTELS mark in various jurisdictions, including the US and Australia, with rights dating back to 1998 The mark is famous around the world. The disputed domain names domain names are confusingly similar to Complainant’s mark as they incorporate the mark fully, while merely eliminating spacing between words and adding either the generic top-level domain (“gTLD”) “.xyz” or “.top.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has it ever been authorized by Complainant to incorporate the CHOICE HOTELS mark in connection with domain registrations. Further, Respondent has neither demonstrated a bona fide offering nor a legitimate noncommercial/fair use through the domains. Instead, Respondent has offered to sell the disputed domains to Complainant for $500 each, and uses the domain names to redirect Internet users to competing third-party websites for pecuniary gain from pay-per-click links. Complainant cites UDRP precedents to support its position.
Complainant states that Respondent registered and used the disputed domain names in bad faith. Respondent’s offer for sale of $500 per domain indicates bad faith under Policy ¶ 4(b)(i). Further, its use of competing hyperlinks which redirect to third-party websites suggests attraction, for commercial gain as per the language of Policy ¶ 4(b)(iv). Lastly, Respondent registered and used the disputed domain names with actual or constructive knowledge of the CHOICE HOTELS mark and Complainant’s rights in the mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CHOICE HOTELS and uses it to market hotel services around the world. The mark and Complainant’s products are famous around the world.
Complainant’s registration of its mark dates back to 1998.
The disputed domain names were registered in 2015.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name points to a web site that contains click-through advertising links to Complainant’s competitors.
Respondent offered to sell the disputed domain names to Complainant for an amount in excess of out-of-pocket costs.
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 are obviously identical to Respondent’s famous mark.
Respondent is not commonly known by the disputed domain names, nor has it ever been authorized by Complainant to incorporate the CHOICE HOTELS mark in connection with domain registrations. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Further, Respondent has neither demonstrated a bona fide offering nor a legitimate noncommercial/fair use through the domains. Instead, Respondent has offered to sell the disputed domains to Complainant for $500 each, and uses the domain names to redirect Internet users to competing third-party websites for pecuniary gain from pay-per-click links. In light of the evidence provided, the Panel finds that Respondent has not made any bona fide offering of goods or services or any legitimate noncommercial or fair use which would justify according rights under Policy ¶¶ 4(c)(i) or (iii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); see also H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Furthermore, where a party has registered and used a domain name in bad faith (see the discussion below), that party cannot be found to have made a bona fide offering of goods and services, see The PNC Financial Services Group, Inc. and PNC Bank, N.A. v. Azra Khan, D2002-0701 (WIPO Sept. 6, 2002); see also AltaVista Company v. Saeid Yomtobian, D2000 0937 (WIPO Oct. 13, 2000).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, Respondent’s offer for sale of $500 per domain indicates bad faith under Policy ¶ 4(b)(i). See Am. Online, Inc. v. Prijic, FA 112639 (Nat. Arb. Forum June 27, 2002) (“[I]n determining whether Respondent has sought consideration in excess of its out-of-pocket costs, the Policy makes clear that only costs related to the domain name are to be considered, and not those related to the creation or maintenance of the connected website”). In light of the circumstances of Respondent’s use and correspondence with Complainant, the Panel finds that Respondent has acted in bad faith under paragraph 4(b)(i) of the Policy.
Further, Respondent’s use of competing hyperlinks which redirect Internet users to third-party websites suggests attraction, for commercial gain under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”). Therefore, the Panel finds that Respondent has registered and is using the disputed domain names in bad faith in the sense of Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <choicehotels.xyz> and <choicehotels.top> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 1, 2015
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