Radisson Hotels International, Inc. v.
Amjad Kausar
Claim
Number: FA0401000224961
Complainant is Radisson Hotels International, Inc. (“Complainant”),
represented by Edward H. Fallon, Carlson Parkway, P.O. Box 59159,
Minneapolis, MN 55459-8249. Respondent is Amjad
Kausar (“Respondent”), P.O. Box 5706, Karachi, Pakistan 74000.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <radissson.com>, registered with Enom,
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.
Sandra
Franklin as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on January 8, 2004; the Forum received a hard copy of the
Complaint on January 9, 2004.
On
January 13, 2004, Enom, Inc. confirmed by e-mail to the Forum that the domain
name <radissson.com> is registered with Enom, Inc. and that
Respondent is the current registrant of the name. Enom, Inc. has verified that
Respondent is bound by the Enom, Inc. registration agreement and has thereby
agreed to resolve domain-name disputes brought by third parties in accordance
with ICANN's Uniform Domain Name Dispute Resolution Policy (the
"Policy").
On
January 14, 2004, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of February 3, 2004 by which Respondent could file a Response to the
Complaint, was transmitted to Respondent via e-mail, post and fax, to all
entities and persons listed on Respondent's registration as technical,
administrative and billing contacts, and to postmaster@radissson.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
February 9, 2004, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the Forum appointed Sandra Franklin 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."
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 makes the following assertions:
1. Respondent’s <radissson.com>
domain name is confusingly similar to Complainant’s RADISSON mark.
2. Respondent does not have any rights or
legitimate interests in the <radissson.com> domain name.
3. Respondent registered and used the <radissson.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Radisson Hotels International, Inc., has used the RADISSON mark in commerce
since 1909 in connection with hotel services. Complainant, with its
franchisees, owns and operates RADISSON branded hotels in countries around the
world, and has obtained or applied for over 150 registrations for the RADISSON
mark worldwide (e.g. U.S. Reg. No. 920,862, registered on September 21,
1971).
Respondent,
Amjad Kausar, registered the <radissson.com> domain name on August
11, 2001. Respondent uses the disputed domain name to redirect Internet users
to the <vipfares.com> domain name, which sells travel packages and
services.
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."
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.
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.
Complainant has
established rights in the RADISSON mark through registration of the mark
worldwide, as well as through widespread use of the mark in commerce around the
globe for nearly a century.
Respondent’s <radissson.com>
domain name is confusingly similar to
Complainant’s RADISSON mark. The domain name is identical to Complainant’s mark
but for the addition of an additional letter “s” within the RADISSON mark. See Blue Cross & Blue Shield Ass’n v. InterActive Communications, Inc.,
D2000-0788 (WIPO Aug. 28, 2000) finding that a domain name which merely adds
the letter “s” to Complainant’s mark is sufficiently similar to the mark to
cause a likelihood of confusion among the users of Complainant’s services and
those who were to view a web site provided by Respondent accessed through the
contested domain name; see also Victoria’s Secret v. Zuccarini, FA 95762
(Nat. Arb. Forum Nov. 18, 2000) finding that, by misspelling words and adding
letters to words, a Respondent does not create a distinct mark but nevertheless
renders the domain name confusingly similar to Complainant’s marks.
Accordingly, the
Panel finds that the <radissson.com> domain name is confusingly similar to Complainant’s RADISSON mark under
Policy ¶ 4(a)(i).
Respondent is
using the <radissson.com> domain
name to redirect Internet users to the <vipfares.com>
domain name. The Panel infers that Respondent’s decision to redirect the
disputed domain name to this travel-oriented website was in order to earn
referral fees or commissions from the operators of the <vipfares.com>
domain name. Respondent’s attempt to benefit commercially from its misappropriation
of Complainant’s RADISSON mark, especially in light of Respondent’s use of a
domain name that competes with Complainant’s services under the RADISSON mark,
is neither a bona fide offering of goods or services nor a legitimate
noncommercial use of the domain name, rendering Policy ¶¶ 4(c)(i) and (iii)
inapplicable in this dispute. See
Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum
Jan. 11, 2002) finding that Respondent’s use of the disputed domain name to
redirect Internet users to a financial services website, which competed with
Complainant, was not a bona fide offering of goods or services; see also Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9,
2001) finding no rights or legitimate interests where Respondent generated
commercial gain by intentionally and misleadingly diverting users away from
Complainant's site to a competing website.
As Respondent is merely using the domain name to redirect Internet users
to the <vipfares.com> domain name, and only appears to be “commonly known
by” the name Amjad Kausar (as listed in
the WHOIS contact information for the disputed domain name) the Panel finds
that Policy ¶ 4(c)(ii) does not apply in this dispute either. See Tercent Inc. v. Yi, FA
139720 (Nat. Arb. Forum Feb. 10, 2003) stating “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly known by’ the disputed domain
name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply; see also Gallup
Inc. v. Amish Country Store,
FA 96209 (Nat. Arb. Forum Jan. 23, 2001) finding that Respondent does not have
rights in a domain name when Respondent is not known by the mark.
Accordingly, the
Panel finds that Respondent does not have rights or legitimate interests in the
<radissson.com> domain
name under Policy ¶ 4(a)(ii).
Respondent registered and used the <radissson.com> domain name in bad
faith. Through its unauthorized use of the RADISSON mark in the disputed domain
name, Respondent is directing Internet users to a website that offers travel
packages in competition with the services offered by Complainant under the
RADISSON mark. Thus, Respondent’s decision to register a domain name that
mimics the RADISSON mark results in the dilution of Complainant’s famous mark,
while confusing Internet users as to the source or sponsorship of the
<vipfares.com> domain name. Additionally, Respondent is using the
RADISSON mark for its own commercial gain, through referral fees from the
<vipfares.com> domain name. This is evidence that the disputed domain
name was both registered and used in bad faith. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO
Dec. 4, 2000) finding that the “domain names are so obviously connected with
the Complainants that the use or registration by anyone other than Complainants
suggests “opportunistic bad faith”; see
also Sony Kabushiki Kaisha
v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) finding bad faith registration
and use where it is “inconceivable that the respondent could make any active
use of the disputed domain names without creating a false impression of
association with the Complainant”.
The Panel thus
finds that Respondent registered and used the <radissson.com> domain name in bad faith, and that Policy ¶
4(a)(iii) is satisfied.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <radissson.com> domain name be TRANSFERRED
from Respondent to Complainant.
Sandra Franklin, Panelist
Dated:
February 23, 2004
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