Six Continents Hotels, Inc. v. TERENCE MCNICHOLAS

NATIONAL ARBITRATION FORUM
URS DEFAULT DETERMINATION

Six Continents Hotels, Inc. v. TERENCE MCNICHOLAS
Claim Number: FA1410001587008

DOMAIN NAME

<holidayinn.nyc>

PARTIES

	Complainant: Six Continents Hotels, Inc. of Atlanta, GA, United States of America
	Complainant Representative: The GigaLaw Firm, Douglas M Isenberg, Attorney at Law, LLC Douglas M Isenberg of Atlanta, GA, United States of America

	Respondent: TERENCE MCNICHOLAS of rockville centre, NY, United States

REGISTRIES and REGISTRARS

	Registries: The City of New York by and through the New York City Department of Information Technology & Telecommunications
	Registrars: Register.com, Inc.

EXAMINER

	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 Examiner in this proceeding.
	Hector Ariel Manoff, as Examiner

PROCEDURAL HISTORY

	Complainant Submitted: October 28, 2014
	Commencement: October 28, 2014
	Default Date: November 13, 2014
	Having reviewed the communications records, the Examiner finds that the National Arbitration Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").

RELIEF SOUGHT

Complainant requests that the domain name be suspended for the life of the registration.

STANDARD OF REVIEW

Clear and convincing evidence.

FINDINGS and DISCUSSION

	Procedural Findings:
		Multiple Complainants: This proceeding features one Complainant and one Respondent. This Complaint relates to the domain name: <holidayinn.nyc> No domain names are dismissed from this complaint.

Findings of Fact: Complainant is one of a number of companies collectively known as InterContinental Hotels Group (“IHG”), one of the world’s leading hotel companies. Companies within IHG own, manage, lease or franchise over 4,600 hotels in nearly 100 countries and territories. Complainant’s Holiday Inn brand was founded in 1952 and is used in connection with 1,168 hotels worldwide. Complainant (or its affiliates) owns more than 1,700 registrations in at least 200 countries or geographic regions for trademarks that consist of or contain the mark HOLIDAY INN (the “HOLIDAY INN Trademark”), including U.S. Reg. Nos. 592,541; 592,539; 864,359; 1,243,330; 1,275,560; and 1,281,008. HOLIDAY INN name has been submitted and verified with the Trade Mark Clearinghouse (the SMD for this entry is 000000160421387000023315‐1).

Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.

[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant

The disputed domain name <holidayinn.nyc> is identical to the Complainant’s Trademarks HOLIDAY INN. Examiner finds that the disputed domain name is confusingly similar to the Complainant’s trademark registrations and that Complainant has complied with URS 1.2.6.1 by demonstrating that the disputed domain name is confusingly similar to a mark for which the Complainant holds a valid national registration which is in current use.

[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant

Complainant has not authorized Respondent to use its registered trademark HOLIDAY INN. Respondent has not filed a response to this complaint and consequently no evidence was submitted to prove that he is commonly known as HOLIDAY INN. There is no evidence about rights or legitimate interest in HOLIDAY INN and the disputed domain name, or evidence about a fair use either. Moreover, Respondent failed to create an active website for the domain name. The Examiner finds that the requirements set forth by URS 1.2.6.2 have been also met.

[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant

Since Complainant’s trademarks are famous and are prior to the disputed domain name’s registration, Examiner concludes that the registration of the disputed domain name (identical to a registered trademark) was made on bad faith. The Examiner agrees with Complainant in that Respondent’s “passive holding” of a domain name containing a famous trademark constitutes bad faith. Therefore, The Examiner finds that the requirements set forth by URS 1.2.6.3 have been also met.

FINDING OF ABUSE or MATERIAL FALSEHOOD

The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.

The Examiner finds as follows:

The Complaint was neither abusive nor contained material falsehoods.

DETERMINATION

After reviewing the parties’ submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for the duration of the registration:

holidayinn.nyc

Hector Ariel Manoff
Examiner
Dated: November 18, 2014

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