Marriott International, Inc. v. domains Ventures
Claim Number: FA0606000741765
Complainant is Marriott International, Inc. (“Complainant”), represented by Paul F. Kilmer, of Holland & Knight LLP, 2099 Pennsylvania Ave., NW, Suite 100, Washington, DC 2006-6801. Respondent is domains Ventures (“Respondent”), 136 Xiaoxue Road, Xiamen, Fujian 361001, CN.
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <greatjobsmarriott.com>, registered with Moniker Online Services, 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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 28, 2006; the National Arbitration Forum received a hard copy of the Complaint on July 3, 2006.
On July 6, 2006, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <greatjobsmarriott.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 July 7, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 27, 2006 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@greatjobsmarriott.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 2, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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 <greatjobsmarriott.com> domain name is confusingly similar to Complainant’s MARRIOTT mark.
2. Respondent does not have any rights or legitimate interests in the <greatjobsmarriott.com> domain name.
3. Respondent registered and used the <greatjobsmarriott.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Marriott International, Inc., is one of the world’s largest hotel chains. Complainant operates over 2,800 hotels in the United States and 66 other countries and territories. Complainant’s hotel chains include MARRIOTT, JW MARRIOTT, COURTYARD, RESIDENCE INN, RENAISSANCE, RITZ-CARLTON and SPRINGHILL SUITES. In 2005 alone, Complainant generated sales of $11.6 billion. Complainant has continuously used the MARRIOTT mark in the United States since 1960 and in China since 1984. Complainant maintains an employment website listing job openings for all of its hotels and resorts at the <greatjobs.marriott.com> domain name.
Complainant holds numerous trademark registrations for variations of the MARRIOTT mark around the world, including in the United States with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 904,029 issued December 8, 1970) and in China with the Trade Mark Office (“CTMO”) (Reg. No. 276,921 issued January 30, 1987; Reg. No. 283,852 issued April 10, 1987; Reg. No. 278,957 issued February 30, 1987).
Respondent registered the disputed domain name on July 10, 2003. Respondent is using the <greatjobsmarriott.com> domain name to operate a web page displaying links such as “Job Openings,” “Marriott Employment” and “Apply Online,” all of which resolve to third-party websites unrelated to 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."
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.
Because Complainant has registered the MARRIOTT mark in China and the United States with the relevant governmental trademark authorities, Complainant has established rights in the mark pursuant to Policy ¶ 4(a)(i). See Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (“Complainant’s numerous registrations for its HONEYWELL mark throughout the world are sufficient to establish Complainant’s rights in the HONEYWELL mark under the Policy ¶ 4(a)(i).”); see also ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (concluding that the complainant demonstrated its rights in the SPORTSCENTER mark through its valid trademark registrations with the USPTO and similar offices around the world); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
The <greatjobsmarriott.com>
domain name is confusingly similar to Complainant’s
MARRIOTT mark pursuant to Policy ¶ 4(a)(i), because it contains the entire mark
and merely adds the terms “great” and “jobs,” which describes Complainant’s
employment website at the <greatjobs.marriott.com> domain name. In Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000),
the Panel found that the addition of generic words to the end of the Sony mark
rendered the respondent’s domain names confusingly similar because “[n]either
the addition of an ordinary descriptive word . . . nor the
suffix ‘.com’ detract from the overall impression of the dominant part of the
name in each case, namely the trademark SONY.”
Therefore, Respondent’s addition of the terms “great” and “jobs” to the
MARRIOTT mark in its domain name is also confusingly similar because
Complainant’s mark is the dominant part of the domain name. See
also 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).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant maintains that Respondent lacks rights and legitimate interests in the <greatjobsmarriott.com> domain name. Complainant must first make a prima facie case in support of its allegations, and then the burden shifts to Respondent to show it does have rights or legitimate interests in the <greatjobsmarriott.com> under to Policy ¶ 4(a)(ii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (“Complainant has made a prima facie showing that Respondent lacks rights to the Domain Name. The threshold for making such a showing is quite low, since it is difficult to produce evidence to support a negative statement. Here, Complainant has alleged that Respondent does not own any rights in the terms STARWOOD or STARWOODS, and that Respondent’s use of the Domain Name is not a fair one. These unsupported assertions, though sparse, are sufficient to make a prima facie showing in regard to the legitimacy element.”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <greatjobsmarriott.com>
domain name. See Pavillion Agency, Inc. v. Greenhouse
Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’
failure to respond can be construed as an admission that they have no
legitimate interest in the domain names); see
also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000)
(finding that by not submitting a response, the respondent has failed to invoke
any circumstance which could demonstrate any rights or legitimate interests in
the domain name). However, the Panel will now examine the record to determine
if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent has registered the domain name under the name “domains Ventures,” and there is no other evidence in the record suggesting that Respondent is commonly known by the <greatjobsmarriott.com> domain name. As a result, Respondent has not established rights or legitimate interests in the <greatjobsmarriott.com> domain name pursuant to Policy ¶ 4(c)(ii). See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Additionally, Respondent’s <greatjobsmarriott.com> domain name, which includes Complainant’s
MARRIOTT mark, resolves to a web page displaying links such as “Job Openings,”
“Marriott Employment” and “Apply Online,” all of which resolve to third-party
websites unrelated to Complainant. In Seiko Kabushiki
Kaisha v. CS into Tech, FA 198795 (Nat.
Arb. Forum Dec. 6, 2003), the respondent registered <seiko.net>, which
was identical to the complainant’s SEIKO mark, and was redirecting Internet
users to a third-party website unrelated to the mark. The panel stated that “[d]iverting customers, who are looking for
products relating to the famous SEIKO mark, to a website unrelated to the mark
is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor
does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).” In this case, Respondent is diverting
Internet users seeking employment opportunities with Complainant to its own web
page, and presumably profiting from click-through fees for each Internet users
it diverts to third-party websites.
Consequently, Respondent has not established that it is using the <greatjobsmarriott.com> domain name
in connection with a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial
or fair use pursuant to Policy ¶ 4(c)(iii).
See State Farm Mut. Auto. Ins. Co. v. LaFaive,
FA 95407 (Nat. Arb. Forum Sept. 27, 2000) (“The unauthorized providing of
information and services under a mark owned by a third party cannot be said to
be the bona fide offering of goods or
services.”).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Because Respondent’s website at the <greatjobsmarriott.com> domain name provides links such as “Apply
Online,” “Job Openings” and “Marriott Employment,” the Panel finds that
Respondent has registered and is using the disputed domain name in order to
disrupt Complainant’s business, specifically its employment opportunities
website, which constitutes bad faith registration and use pursuant to Policy ¶
4(b)(iii). See Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000)
(defining “competitor” as “one who acts in opposition to another and the
context does not imply or demand any restricted meaning such as commercial or
business competitor”); see also S.
Exposure v. S. Exposure, Inc., FA
94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered
the domain name in question to disrupt the business of the complainant, a
competitor of the respondent); see also Toyota Jidosha Kabushiki Kaisha v. S&S Enters. Ltd., D2000-0802
(WIPO Sept. 9, 2000) (“Registration of a domain name [by the respondent that
incorporates another’s trademark] goes further than merely correctly using in
an advertisement the trade mark of another in connection with that other’s
goods or services.”).
Respondent is using the <greatjobsmarriott.com> domain
name, which is confusingly similar to Complainant’s MARRIOTT mark, to induce
Internet users seeking employment opportunities with Complainant into believing
that they have reached Complainant’s employment website at the
<greatjobs.marriott.com> domain name, when in fact they are misdirected
to a search engine displaying links to content unrelated to Complainant. In Drs.
Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21,
2000), the panel found that the respondent’s diversion of Internet users who
were seeking the complainant’s website to its own website for commercial gain
created “a likelihood of confusion with the Complainant’s mark as to the
source, sponsorship, endorsement, or affiliation of its website” and,
therefore, provided evidence of bad faith registration and use in violation of
Policy ¶ 4(b)(iv). Likewise, Respondent’s
registration and use of the <greatjobsmarriott.com>
domain name to profit from diverting Internet users searching for employment
opportunities with Complainant to third-party websites unrelated to
Complainant’s MARRIOTT mark merits a finding of bad faith under Policy ¶
4(b)(iv). See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002)
(finding that if the respondent profits from its diversionary use of the
complainant's mark when the domain name resolves to commercial websites and the
respondent fails to contest the complaint, it may be concluded that the
respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel concludes 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 <greatjobsmarriott.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: August 16, 2006
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