Choice Hotels International, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA1807001797729
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Diana S. Bae of Arent Fox LLP, District of Columbia. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vchoicehotels.com> (the “Domain Name”), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 20, 2018; the Forum received payment on July 20, 2018.
On July 23, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <vchoicehotels.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 July 25, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 14, 2018 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@vchoicehotels.com. Also on July 25, 2018, 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 August 15, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
Complainant’s contentions can be summarised as follows:
Complainant is the owner of the CHOICE HOTELS mark registered, inter alia in the United States since 2003 for real estate related services. It has owned <choicehotels.com> since 2016.
The Domain Name registered in 2018 is confusingly similar to Complainant’s mark and incorporates it in its entirety with only the addition of the extra letter ‘v’ and the gTLD .com which does not distinguish the Domain Name from Complainant’s mark.
Respondent is not commonly known by the Domain Name and has not be authorised by Complainant to use Complainant’s mark. Use of the Domain Name to point to pay per click links to offer competing services is not a bona fide offering of services or a legitimate non commercial or fair use.
Registration of a confusingly similar domain name with knowledge of another’s trade mark is evidence of bad faith. Use of the Domain Name to advertise goods and services provided by Complainant’s competitors is a disruption of Complainant’s business under Policy ¶ 4(b)(iii) and creates a likelihood of confusion as to Complainant’s sponsorship and affiliation with the Domain Name under Policy ¶ 4(b)(iv).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the CHOICE HOTELS mark registered, inter alia, in the United States since 2003 for real estate related services. It has owned <choicehotels.com> since 2016.
The Domain Name registered in 2018 has been used to point to pay per click links competing with Complainant.
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 day 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.”).
The Domain Name consists of Complainant’s CHOICE HOTELS mark (registered around the world, inter alia, in the USA for real estate related services with first use recorded as 1990), the letter ‘v’ and the gTLD .com. Panels have found that adding one letter to the registered mark does not distinguish a domain name from that mark. See Twitch Interactive, Inc. v Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding that twitcch.tv is confusingly similar to the TWITCH TV trade mark because the domain name consisted of a common misspelling of the mark by merely adding the letter ‘c’).
The gTLD .com does not serve to distinguish the Domain Name from the BLOOMBERG mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the <redhat.org> domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which Complainant has rights.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Respondent has used the site attached to the Domain Name for links offering competing products not connected with Complainant. He does not make it clear that there is no commercial connection with Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See ALPITOUR SpA v Albloushi FA 888651 (Forum. Feb. 26, 2007) (rejecting the respondent's contentions of rights and legitimate interests because the respondent was merely using the domain name to operate a web site containing links to various competing commercial web sites which the panel did not find to be bona fide use in relation to goods and service under the Policy.)
As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Respondent's use of the sites connected to the Domain Name is commercial and it is using them to profit from linking to third party web sites in a confusing manner. The use of the Domain Name to competitors of Complainant shows that Respondent is aware of Complainant and its business. The Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to his websites by creating likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site. See Dovetail Ventures LLC v Klayton Thorpe, FA 1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv) where it used the disputed domain name to host a variety of hyperlinks unrelated to the complainant’s business through which the respondent presumably gained).
Further it has been held that such use is disruptive under Policy ¶ 4(b)(iii) of the Policy. See Adriana Inc v Moniker Privacy services, FA 1503001610020 (Forum May 1, 2015) (Using pay per click links redirecting users to competing web sites to disrupt and compete with a Complainant’s business is evidence of bad faith registration and use under Policy ¶ 4(b)(iii)).
As such, the Panel holds that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <vchoicehotels.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: August 16, 2018
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