Choice Hotels International, Inc. v. South Travels
Claim Number: FA0608000771251
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Halle B. Markus, of Arent Fox PLLC, 1050 Connecticut Avenue, NW, Washington, DC 20036. Respondent is South Travels (“Respondent”), P.O Box 26863, Sharjah, II 26863 United Arab Emirates.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <allchoicehotels.com>, registered with Go Daddy Software, 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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 7, 2006; the National Arbitration Forum received a hard copy of the Complaint on August 7, 2006.
On August 7, 2006, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <allchoicehotels.com> domain name is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 August 11, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 31, 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@allchoicehotels.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 8, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (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 <allchoicehotels.com> domain name is confusingly similar to Complainant’s CHOICE HOTELS mark.
2. Respondent does not have any rights or legitimate interests in the <allchoicehotels.com> domain name.
3. Respondent registered and used the <allchoicehotels.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Choice Hotels International, Inc., operates over 5,200 hotels around the world, making it one of the largest lodging franchisors in the world. Complainant has continuously used the CHOICE HOTELS mark to refer to its family of lodging facilities since 1990. Complainant’s family of hotels includes the following brands: Comfort Inn, Quality Inn, Sleep Inn, Rodeway Inn, Mainstay Suites and Suburban Extended Stay Hotel. Complainant maintains websites at the <choicehotels.com> (registered on February 23, 1996) and <choicehotel.com> (registered on May 3, 2006) domain names, where it accepts online hotel reservations.
Complainant has registered the CHOICE HOTELS mark with various trademark authorities around the world, including in Australia (Reg. No. 665,724 issued July 3, 1995), Canada (TMA608,648 issued April 27, 2004), the European Community (Reg. No. 2,272,466 issued November 29, 2002), and the United States (Reg. No. 2,717,062 issued May 20, 2003).
Respondent registered the <allchoicehotels.com> domain name on July 8, 2004. Respondent is using the disputed domain name to operate an online hotel reservation service that competes directly with Complainant’s own online reservation service.
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.
For purposes of Policy ¶ 4(a)(i), Complainant has
established rights in the CHOICE HOTELS mark through registration of the mark
with numerous trademark authorities around the world. See Morgan Stanley v. Fitz-James (CT2341-RSC) Cititrust Grp.
Ltd., FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (“The Panel finds from a
preponderance of the evidence that Complainant has registered its mark with
national trademark authorities. The
Panel has determined that such registrations present a prima facie case of Complainant’s rights in the mark for purposes
of Policy ¶ 4(a)(i).”); see also Google, Inc. v. DktBot.org, FA 286993
(Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established
rights in the GOOGLE mark through its holding of numerous trademark
registrations 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).
Because the only difference between the <allchoicehotels.com> domain name and Complainant’s registered CHOICE HOTELS mark is the mere addition of the term “all,” Respondent has failed to sufficiently distinguish the disputed domain name from the mark. Therefore, the Panel finds that Respondent’s <allchoicehotels.com> domain name is confusingly similar to the mark pursuant to Policy ¶ 4(a)(i). See Amer. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum Jun. 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Google Inc. v. Xtraplus Corp., D2001-0125 (WIPO Apr. 16, 2001) (finding that the respondent’s domain names were confusingly similar to Complainant’s GOOGLE mark where the respondent merely added common terms such as “buy” or “gear” to the end).
The Panel concludes that Complainant has satisfied this element of the Policy.
Complainant asserts that Respondent has no rights or
legitimate interests in the <allchoicehotels.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 pursuant to
Policy ¶ 4(a)(ii). See Hanna-Barbera Productions, Inc. v.
Entm’t Commentaries,
FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must
first make a prima facie case that the respondent lacks rights and
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before
the burden shifts to the respondent to show that it does have rights or
legitimate interests in a domain name); see also Document
Tech., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO Jun. 6, 2000)
(“Although Paragraph 4(a) of the Policy requires that the Complainant prove the
presence of this element (along with the other two), once a Complainant makes
out a prima facie showing, the burden of production on this factor
shifts to the Respondent to rebut the showing by providing concrete evidence
that it has rights to or legitimate interests in the Domain Name.”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <allchoicehotels.com>
domain name. See Am. Online, Inc. v.
AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate
interests where the respondent fails to respond); see also BIC Deutschland GmbH & Co. KG v. Tweed,
D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has
failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c)
of the Policy, 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 “South
Travels,” and there is no other evidence in the record suggesting that
Respondent is commonly known by the <allchoicehotels.com> domain
name. Thus, Respondent has not
established rights or legitimate interests in the <allchoicehotels.com>
domain name pursuant to Policy ¶ 4(c)(ii).
See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335
(Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly
known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii)
based on the WHOIS information and other evidence in the record); see also
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.”).
Moreover, Respondent is using the <allchoicehotels.com>
domain name to redirect Internet users seeking information on Complainant’s
hotels to a website offering online hotel reservations. In Expedia, Inc. v. Compaid, FA
520654 (Nat. Arb. Forum Aug. 30, 2005), the panel found the respondent’s use of
a domain name to divert consumers to other travel websites that competed with
the complainant was not a use 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).
Because Respondent is using the disputed domain name in a similar
fashion and likely profiting from its diversion of Internet users to a
competing travel website, the Panel concludes that Respondent does not have
rights or legitimate interests in the <allchoicehotels.com> domain
name pursuant to Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See DLJ Long Term Inv. Corp. v.
BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002)
(“Respondent is not using the disputed domain name in connection with a bona
fide offering of goods and services because Respondent is using the domain name
to divert Internet users to <visual.com>, where services that compete
with Complainant are advertised.”).
The Panel concludes that Complainant has satisfied this element of the Policy.
Respondent is using the <allchoicehotels.com>
domain name to redirect Internet users to a competing hotel reservations
website. The Panel finds that
Respondent has registered and is using the disputed domain name in order to
disrupt Complainant’s business under the CHOICE HOTELS mark, which constitutes
bad faith according to Policy ¶ 4(b)(iii).
See Classic Metal Roofs, LLC v. Interlock Industries, Ltd., FA
724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent
registered and used the <classicmetalroofing.com> domain name in bad
faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the
respondent’s competing website); see also Marriott Int’l, Inc. v. MCM Tours,
Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel
agency and thus operates in the same business as the Complainant. The parties
can therefore be considered as competitors. The Panel thus finds that the
Respondent registered the domain name primarily for the purpose of disrupting
the business of a competitor, which constitutes evidence of registration and
use in bad faith under Policy 4(b)(iii).”).
The Panel also finds
that Respondent’s diversionary use of the <allchoicehotels.com>
domain name for commercial gain violates Policy ¶ 4(b)(iv), for by linking the
domain name to a competing hotel reservations website, Respondent is taking
advantage of the confusing similarity between the disputed domain name and
Complainant’s CHOICE HOTELS mark in order to profit from the goodwill
associated with the mark. See
Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (find that the
respondent’s use of the <arizonashuttle.net> domain name, which contained
the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to
Respondent’s website offering competing travel services violated Policy ¶
4(b)(iv)); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb.
Forum June 2, 2006) (finding bad faith registration and use under Policy ¶
4(b)(iv) where the respondent was diverting Internet users searching for the
complainant to its own website and likely profiting from click-through fees).
The Panel concludes that Complainant has satisfied this element 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 <allchoicehotels.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: September 21, 2006
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum