Radisson Hotels International, Inc. v. Marcel Stillekens d/b/a Travel Reservations Network
Claim Number: FA0510000570293
Complainant is Radisson Hotels International, Inc. (“Complainant”), represented by Wanda K. Cahill, 701 Carlson Parkway, Minnetonka, MN 55305-8249. Respondent is Marcel Stillekens d/b/a Travel Reservations Network (“Respondent”), 705 Martens CT. PMB 8-121, Laredo, TX 78041-6010, US.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <radisson-hotels.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 3, 2005; the National Arbitration Forum received a hard copy of the Complaint on October 3, 2005.
On October 3, 2005, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by e-mail to the National Arbitration Forum that the <radisson-hotels.com> domain name is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.com 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 October 11, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 31, 2005 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@radisson-hotels.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 7, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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." 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <radisson-hotels.com> domain name is confusingly similar to Complainant’s RADISSON mark.
2. Respondent does not have any rights or legitimate interests in the <radisson-hotels.com> domain name.
3. Respondent registered and used the <radisson-hotels.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Radisson
Hotels International, Inc., is an internationally renowned hotel company. Along with its franchisees, Complainant owns
and operates hotels throughout the world.
Complainant holds
more than 150 pending or issued registrations throughout the world for the
RADISSON mark, including a registration of the mark with the United States
Patent and Trademark Office (“USPTO”) (Reg. No. 920,862 issued September 21,
1971)
Respondent registered the <radisson-hotels.com> domain name on August 20, 2000. The domain name resolves to a commercial website at the <lowest-airfares.com> domain name that offers travel products and services, including those of Complainant’s competitors in the hotel industry.
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. 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.”).
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 provided evidence that it is the owner of a
registration for the RADISSON mark with the USPTO. Complainant’s registration of its mark with a national trademark
authority is sufficient to establish a prima facie case of Complainant’s
rights in the mark in satisfaction of Policy ¶ 4(a)(i). See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5,
2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which
creates a rebuttable presumption that the mark is inherently
distinctive."); see also Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the
USPTO establishes Complainant's rights in the mark.”).
Complainant contends that the <radisson-hotels.com> domain name registered by Respondent is confusingly similar to Complainant’s RADISSON mark, because the domain name incorporates Complainant’s mark in its entirety and only adds the generic term “hotels,” which describes the type of services associated with Complainant’s mark. Adding a term describing Complainant’s business to Complainant’s mark is not enough to distinguish the domain name from the mark. See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent’s domain name <marriott-hotel.com> is confusingly similar to the complainant’s MARRIOTT mark).
Furthermore, the hyphen and generic top-level domain (“gTLD”) “.com” are irrelevant to a determination of similarity under Policy ¶ 4(a)(i). See Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Nat. Arb. Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
The initial burden under Policy ¶ 4(a)(ii) is on Complainant to prove that Respondent does not have rights or legitimate interests in the disputed domain name. Once Complainant has made a prima facie case, the burden then shifts to Respondent to show that it does have rights or legitimate interests pursuant to the directions provided in Policy ¶ 4(c). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (describing the burden shifting from the complainant to the respondent regarding rights and legitimate interests); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). The Panel finds that Complainant has presented a prima facie case and now chooses to consider whether an evaluation of all the evidence demonstrates rights or legitimate interests for Respondent under Policy ¶ 4(c).
Complainant contends that Respondent is not commonly known by the <radisson-hotels.com> domain name and that Respondent has never been licensed or authorized by Complainant to use Complainant’s RADISSON mark or any variation thereof for any purpose. Based upon these assertions and the record, the Panel finds no evidence to suggest that Respondent has established rights or legitimate interests under Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").
According to the record, there is no
evidence that Respondent has been using the <radisson-hotels.com>
domain name in connection with a bona fide offering of goods or services
under Policy ¶ 4(c)(i) or making a legitimate noncommercial or fair use of the
domain name under Policy ¶ 4(c)(iii).
Complainant asserts that Respondent is using the disputed domain name to
operate a commercial website at the <lowest-airfares.com> domain name,
where travel products and services are offered, including hotel services of
Complainant’s competitors. Respondent’s
use of a domain name that includes Complainant’s RADISSON mark to divert
Internet users to Respondent’s commercial website is not a bona fide
offering of goods or services under Policy ¶ 4(c)(i), because it is clear that
Respondent’s purpose is to use Complainant’s goodwill to attract Complainant’s
consumers to Respondent’s commercial website.
Such use also does not qualify as a legitimate noncommercial or fair use
of the domain name under Policy ¶ 4(c)(iii).
See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001)
(stating that the respondent’s use of the complainant’s entire mark in domain
names makes it difficult to infer a legitimate use); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's
demonstrated intent to divert Internet users seeking Complainant's website to a
website of Respondent and for Respondent's benefit is not a bona fide offering
of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
It is clear from the record that Respondent intended to attract Internet users to its commercial website by creating confusion with Complainant’s RADISSON mark. Internet users searching for Complainant’s hotel services using Complainant’s mark are likely to become confused if they encounter Respondent’s website after typing in Complainant’s mark. The registration and use of a domain name containing Complainant’s mark primarily to capitalize on the goodwill associated with Complainant’s mark by attracting Complainant’s customers is evidence of bad faith registration and user under Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
Due to Complainant’s registration of its RADISSON mark with the USPTO, Respondent had constructive notice of Complainant’s rights in the mark when Complainant registered the <radisson-hotels.com> domain name. Additionally, Respondent’s use of Complainant’s entire mark coupled with Respondent’s use of the domain name, in part, to offer competing hotel services suggests that Respondent had actual knowledge of Complainant’s rights as well. Respondent’s registration of the domain name including Complainant’s RADISSON mark with actual or constructive knowledge of Complainant’s rights in the mark is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof.”); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”).
The Panel finds that 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 <radisson-hotels.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: November 18, 2005
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