Margaritaville Enterprises, LLC v. Greg Eckmann
Claim Number: FA2002001885922
Complainant is Margaritaville Enterprises, LLC (“Complainant”), represented by Joel R. Feldman of Greenberg Traurig, LLP, Georgia, USA. Respondent is Greg Eckmann (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <margaritavillelakeconroe.com> (‘the Domain Name’), registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 27, 2020; the Forum received payment on February 27, 2020.
On February 28, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <margaritavillelakeconroe.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 March 3, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 23, 2020 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@margaritavillelakeconroe.com. Also on March 3, 2020, 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 March 26, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
The Complainant is the owner of the mark MARGARITAVILLE, registered, inter alia, in the USA for hotels with first use recorded as 2010. It owns <MARGARITAVILLE.com>. It has plans to open a new MARGARITAVILLE hotel at Lake Conroe in Texas in 2020.
The Domain Name is confusingly similar to the MARGARITAVILLE trade mark adding only the geographical term “Lake Conroe” and the gTLD which do not prevent confusing similarity.
The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name is not being used so there is no bona fide offering of goods or services or legitimate noncommercial fair use.
The Complainant announced that it was opening a hotel at Lake Conroe on April 4, 2019 and the Respondent registered the Domain Name on April 14 2019 in opportunistic bad faith. The inclusion of Lake Conroe in the Domain Name with the Complainant’s mark shows actual knowledge of the Complainant, its business, services and rights and the Complainant’s plans to open a hotel at Lake Conroe. Passive holding is bad faith under the Policy.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark MARGARITAVILLE, registered, inter alia, in the USA for hotels with first use recorded as 2010. It owns <MARGARITAVILLE.com>. It has plans to open a new MARGARITAVILLE hotel at Lake Conroe in Texas in 2020.
The Domain Name, registered in 2019 shortly after the announcement that the Complainant would open a hotel at Lake Conroe, has not been used.
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:
(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.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical and/or Confusingly Similar
The Domain Name in this Complaint combines the Complainant’s MARGARITA mark (registered in the USA for hotels with first use recorded as 2010) the geographical term “Lake Conroe” and the gTLD “.com.”
The addition of a geographical indicator and a gTLD to mark does not prevent confusing similarity between a disputed domain name from a mark under Policy ¶ 4(a)(i). See Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum Apr. 11, 2018) (finding that the <franklincoveykorea.com> domain name is confusingly similar to the FRANKLIN COVEY mark, as “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i).”).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
There has been no use of the mark. See Hewlett-Packard Co. v Shemesh, FA 434145 (Forum April 20, 2005)(Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i). )
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s mark which is recognised for hotels together with a term denoting a location where the Complainant intends to open a business in 2020. The timing of the registration of the Domain Name approximately ten days after the Complainant announced that it was intending to open a MARGARITAVILLE hotel in Lake Conroe demonstrates opportunistic bad faith.
The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trade mark of another. Passive holding of a domain name containing a mark with a reputation can be bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb 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 <margaritavillelakeconroe.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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