Radisson Hotels International, Inc. v. Yeonju Hong / Dzone Inc.
Claim Number: FA1709001748994
Complainant is Radisson Hotels International, Inc. (“Complainant”), represented by Ashley Bennett Ewald of GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A., Minnesota, USA. Respondent is Yeonju Hong / Dzone Inc. (“Respondent”), South Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radissonhotels.net>, registered with Fabulous.com Pty Ltd.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 14, 2017; the Forum received payment on September 14, 2017.
On September 15, 2017, Fabulous.com Pty Ltd confirmed by e-mail to the Forum that the <radissonhotels.net> domain name is registered with Fabulous.com Pty Ltd and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd has verified that Respondent is bound by the Fabulous.com Pty Ltd 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 September 22, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 12, 2017 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@radissonhotels.net. Also on September 22, 2017, 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 October 17, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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 name be transferred from Respondent to Complainant.
A. Complainant
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the RADISSON mark. Respondent’s domain name is confusingly similar to Complainant’s RADISSON mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <radissonhotels.net> domain name and that Respondent registered and uses the domain name 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(f), 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 (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.”).
Complainant holds many registrations of its RADISSON mark with national trademark offices all over the world. (e.g., Reg. No. 920,862, registered September 21, 1971). For the purposes of Policy ¶ 4(a)(i), USPTO registrations are sufficient to show rights in a mark. See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”). Therefore, the Panel finds Complainant has shown rights in the RADISSON mark pursuant to Policy ¶ 4(a)(i).
Additionally, Complainant asserts Respondent’s <radissonhotels.net> is confusingly similar to the RADISSON mark, as the domain name incorporates the mark in its entirety, adds a descriptive term describing Complainant’s business, and attaches a gTLD. Such changes to the mark are insufficient to distinguish a domain name from a mark per Policy ¶ 4(a)(i). See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark); see also Thom Browne, Inc. v. Huili Zhang, FA 1358629 (Forum Dec. 22, 2010) (finding, “The addition of the gTLD ‘.net’ also has no effect on the Policy ¶ 4(a)(i) analysis.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <radissonhotels.net> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in <radissonhotels.net> as Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the RADISSON mark in any way. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the a domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). A privacy service was used by Respondent, but was lifted as a result of the commencement of this proceeding. As a result, the WHOIS information of record identifies Respondent as “Yeonju Hong.” Additionally, the lack of evidence in the record to indicate that Respondent had been authorized to register a domain name using the Complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in the <radissonhotels.net> domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Next, Complainant contends Respondent fails to use <radissonhotels.net> to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Respondent’s <radissonhotels.net> resolves to parked pages which contain links to Complainant’s competitors. Further, Respondent’s attempts to sell <radissonhotels.net> does not constitute as a bona fide use. See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”); see also Enterprise Holdings, Inc. v. Huang Jia Lin, FA1504001614086 (Forum May 25, 2015) (“Accordingly, the Panel finds that Respondent’s general attempt to sell the disputed domain name is further evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii).”). In 2014, Respondent’s <radissonhotels.net> the page was not actively used and contained little content. Now, as of September 14, 2017, Respondent’s <radissonhotels.net> resolves to a page with offers links to a variety of hotels, including Complainant’s RADISSON hotels and links to Complainant’s competitors. Finally, Respondent has made a general offer to sell <radissonhotels.net> by stating “Buy this domain.” For all of these reasons the Panel finds Complainant has satisfied Policy ¶¶ 4(c)(i) and (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts Respondent registered and uses <radissonhotels.net> in bad faith. Complainant argues Respondent’s offering to sell <radissonhotels.net> alone is sufficient to find bad faith under Policy ¶ 4(a)(iii). The Panel agrees. See Staples, Inc. v. lin yanxiao, FA1505001617686 (Forum June 4, 2015) (“Respondent’s offering to sell the disputed domain name to a third party (in this case, the general public) supports a finding of bad faith registration and use.”). Here, Respondent’s <radissonhotels.net> resolves to a page that states: “Buy this domain.” Therefore, the Panel finds Complainant has satisfied Policy ¶ 4(b)(i).
Next, Complainant asserts Respondent’s registration and use of <radissonhotels.net> has disrupted Complainant’s business. Complainant argues Respondent has diverted users to competitor’s sites and such use of the RADISSON mark “creates an arguably higher likelihood that the domain name could be used to ‘unfairly deprive Complainant of business.’” See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015). Because it is reasonable to conclude that customers searching for Complainant will be confused and instead go to competitor’s sites for hotel services, Complainant has satisfied Policy ¶ 4(b)(iii).
Finally, Complainant also contends that in light of the fame and notoriety of Complainant's RADDISON mark, it is inconceivable that Respondent could have registered the <radissonhotels.net> domain name without actual knowledge of Complainant's rights in the mark. The Panel agrees with Complainant that Respondent’s use of Complainant’s mark, along with a generic term describing Complainant’s business, demonstrates Respondent had actual knowledge of Complainant's rights in the mark prior to registering the domain name. And, actual knowledge under these circumstances is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
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 <radissonhotels.net> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson Panelist
Dated: October 23, 2017
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