Radisson Hotels International, Inc. v. cao sheng gui
Claim Number: FA1805001789555
Complainant is Radisson Hotels International, Inc. (“Complainant”), represented by Ashley Bennett Ewald of GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A., Minnesota, USA. Respondent is cao sheng gui (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue, both of which are registered with Godaddy.Com, Llc., are <radissonnewworld.com> and <radissonzdhotel.com>.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 31, 2018; the Forum received payment on May 31, 2018.
On Jun 4, 2018, Godaddy.Com, Llc confirmed by e-mail to the Forum that the <radissonnewworld.com>, <radissonzdhotel.com> domain names are registered with Godaddy.Com, Llc and that Respondent is the current registrant of the names. Godaddy.Com, Llc has verified that Respondent is bound by the Godaddy.Com, Llc registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 6, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 26, 2018 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@radissonnewworld.com, postmaster@radissonzdhotel.com. Also on June 6, 2018, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 27, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 a response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Doing business under the RADISSON mark, Complainant owns and operates more than four hundred hotels in over sixty-five countries around the world.
Complainant holds a registration for the service mark RADISSON.COM, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,117,631, first registered December 2, 1997, and most recently renewed as of February 13, 2017.
Respondent registered the domain names <radissonnewworld.com> and <radissonzdhotel.com> on April 21, 2012.
The domain names are confusingly similar to Complainant’s RADISSON mark.
Respondent is not authorized to use Complainant’s RADISSON mark.
Respondent has not been commonly known by the domain names.
Respondent is not using the domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Instead, Respondent uses them to pass itself off as Complainant online in order to sell competing hotel services.
Respondent has no rights to or legitimate interests in the domain names.
Respondent knew of Complainant’s rights in the RADISSON mark prior to registering the domain names.
Respondent registered and is using the domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain names; and
(3) the same domain names were registered and are being used by Respondent in bad faith.
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."
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:
ii. Respondent has no rights to or legitimate interests in respect of the domain names; and
iii. the domain names were registered and are being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the RADISSON.COM service mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of registration of the mark with a national trademark authority, the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here China). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that both of the domain names <radissonnewworld.com> and <radissonzdhotel.com> are confusingly similar to Complainant’s service mark RADISSON.COM. Each incorporates the mark in its entirety, while adding only a generic or descriptive term which can be taken to relate to Complainant’s worldwide business or an aspect of it. The apparently random letter combination “zd” added to one of them is of no consequence in light of the other features of the affected domain name. Accordingly, these alterations of the mark, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See, for example, Kohler Co. v. Curley, FA 890812 (Forum March 5, 2007) (finding confusing similarity where the domain name <kohlerbaths.com> contained a UDRP complainant’s mark in its entirety while adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business”).
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <radissonzdhotel.com> and <radissonnewworld.com> domain names, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the <radissonzdhotel.com> and <radissonnewworld.com> domain names. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in either of the domain names that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <radissonzdhotel.com> and <radissonnewworld.com> domain names, and that Complainant has not licensed or otherwise authorized Respondent to use the RADISSON.COM mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “cao sheng gui,” which does not resemble either of the domain names. On this record, we conclude that Respondent has not been commonly known by the disputed domain names so as to have acquired rights to or legitimate interests in them within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <radissonzdhotel.com> and <radissonnewworld.com> domain to pass itself off as Complainant online in order to gain financially from the sale of competing hotel services. This use of the domain names is neither a bona fide offering of goods or services by means of the domain names under Policy ¶4(c)(i) nor a legitimate noncommercial or fair use of them under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain names as provided in those subsections of the Policy. See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007):
Because respondent in this case is also attempting to pass itself off as complainant, presumably for financial gain, the Panel finds the respondent is not using the … domain name for 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 also General Motors LLC v. MIKE LEE, FA 1659965 (Forum March 10, 2016), finding that:
[U]se of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent employs the challenged <radissonnewworld.com> and <radissonzdhotel.com> domain names, which we have found to be confusingly similar to Complainant’s RADISSON.COM mark, to profit from the confusion thus caused among Internet users as to the possibility of Complainant’s affiliation with the domain names. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain names. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017), finding bad faith under Policy ¶ 4(b)(iv) where:
Respondent registered and uses the … domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse [Internet] users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.
See also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015):
The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the RADISSON.COM mark when it registered the domain names <radissonnewworld.com> and <radissonzdhotel.com>. This too demonstrates Respondent’s bad faith in registering the domain names. See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Forum April 10, 2006) (finding that, where the circumstances indicate that a respondent knew of a UDRP complainant's mark when it registered a confusingly similar domain name, a panels can find bad faith in its registration). See also Yahoo! Inc. v. Butler, FA 744444 (Forum August 17, 2006) (finding bad faith where a UDRP respondent was "well-aware of the complainant's … mark at the time of [a domain name’s] registration.").
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the domain names <radissonzdhotel.com> and <radissonnewworld.com> be TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 11, 2018
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