Loew’s Hotels, Inc. v. Brandy June
Claim Number: FA2004001892610
Complainant is Loew’s Hotels, Inc. (“Complainant”), represented by Natasha Reed of Foley Hoag LLP, New York, USA. Respondent is Brandy June (“Respondent”), North Carolina, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <loewshotelsjobs.com>, registered with Porkbun LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 17, 2020; the Forum received payment on April 17, 2020.
On April 20, 2020, Porkbun LLC confirmed by e-mail to the Forum that the <loewshotelsjobs.com> domain name is registered with Porkbun LLC and that Respondent is the current registrant of the name. Porkbun LLC has verified that Respondent is bound by the Porkbun 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 April 27, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 18, 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@loewshotelsjobs.com. Also on April 27, 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 May 26, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant, Loew’s Hotels, Inc., operates hotels and resorts across the United States and Canada. Complainant asserts rights in the LOEWS mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,601,550, registered on June 12, 1990). The disputed domain name is nearly identical or confusingly similar to Complainant’s LOEWS mark, as it incorporates the mark in its entirety and merely adds the generic term “jobs.”
ii) Respondent lacks rights or legitimate interest in the disputed domain name. Respondent is not commonly known by the disputed domain name and is not authorized or licensed to use Complainant’s LOEWS mark. Additionally, Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent fails to make any active use of the domain name as it currently features a parked website. Further, Respondent’s act of typosquatting evidences a lack of rights and legitimate interests in the domain.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to disrupt Complainant’s legitimate business. In addition, Respondent makes no active use of the disputed domain name and instead uses it to host a parked website. Respondent also failed to respond to Complainant’s attempt to resolve the dispute without arbitration. Finally, Respondent had knowledge of Complainant’s rights in the LOEWS mark at the time of registration.
B. Respondent
Respondent did not submit a response to this proceeding.
1. The disputed domain name was registered on January 3, 2020.
2. Complainant has established rights in the LOEWS mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,601,550, registered on June 12, 1990).
3. The disputed domain name's resolving website features a parked webpage.
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”).
Complainant asserts rights in the LOEWS mark through its registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to demonstrate rights in the mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides evidence of its registration with the USPTO (e.g., Reg. No. 1,601,550, registered on June 12, 1990) Therefore, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that the disputed domain name is confusingly similar to Complainant’s mark because it incorporates the LOEWS mark in its entirety with the addition of the generic term “jobs”. While not argued by Complainant, the Panel may note the disputed domain name also features the term “hotels” and the “.com” generic top-level domain (“gTLD”). The addition of generic terms and a gTLD is not enough to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). Complainant also argues that the disputed domain name differs from its own <loewshoteljobs.com> domain name by only a single letter. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent does not have rights or legitimate interests in the disputed domain name, as Respondent is not commonly known by the disputed domain name, and Complainant has not authorized Respondent to use the LOEWS mark. Where a response is lacking, relevant WHOIS information can be used to determine if a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by that name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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). The WHOIS information for the disputed domain name identifies the registrant as “BRANDY JUNE” and nothing in the record indicates that Respondent is licensed to use Complainant’s mark or is known by the disputed domain name. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Additionally, Complainant claims Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent makes no active use of the disputed domain name. A parked website may not be considered a demonstrable preparation to use a disputed domain name and is not a bona fide offering or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name). Complianant provides screenshots of Respondent’s resolving website which features a parked webpage.
Complainant also argues that Respondent’s act of typosquatting evidences a lack of rights and legitimate interests in the disputed domain name. Acts of typosquatting can provide additional evidence that a respondent lacks rights and legitimate interests in a disputed domain name under Policy ¶ 4(c)(ii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”). Complainant claims that Respondent relies on the possibility of users misspelling Complainant’s <loewshoteljobs.com> domain name to reach the disputed domain name since the two differ by a single letter. As the Panel agrees that this use constitutes typosquatting, it finds that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues Respondent registered and uses the disputed domain name in bad faith. Use of a complainant’s well known mark to hinder customer communication with a complainant suggests bad faith disruption of Complainant’s business under Policy ¶ 4(b)(iii). See Love City Brewing Company v. Anker Fog / Love City Brewing Company, FA 1753144 (Forum Nov. 27, 2017) (Finding that Respondent disrupts Complainant’s business by pointing Internet users to an expired webpage. This may create the perception that Complainant is closed, never existed, or is not a legitimate business. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iii).). Complainant argues that Respondent’s actions disrupt Complainant’s business because visitors to Respondent’s parked webpage would assume Complainant’s website is not working and would associate their dissatisfaction with Complainant. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iii).
Additionally, the Complainant contends that Respondent shows no evident intention of use for the disputed domain name. As previously noted, Complainant provides screenshots of Respondent’s resolving website which features a parked webpage. The Panel notes that the passive holding of a domain name does not necessarily circumvent a finding that the domain name is being used in bad faith within the requirements of paragraph 4(a)(iii) of the Policy. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (finding that in considering whether the passive holding of a domain name, following a bad faith registration of it, satisfies the requirements of paragraph 4(a)(iii), the panel must give close attention to all the circumstances of the respondent’s behavior, and a remedy can be obtained under the Policy only if those circumstances show that the respondent’s passive holding amounts to acting in bad faith.)
The particular circumstances of this case that the Panel has considered are:
i) The LOEWS mark has been advertised and promoted by Complainant and its predecessors for over fifty years. As a result of their substantial investments and extremely high quality standards, the LOEWS mark is renowned in the industry and is recognized throughout the world as signifying the high quality of Complainant’s services; and
ii) Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the disputed domain name.
Taking into account all of the above, the Panel concludes that Respondent’s inactive use of the disputed domain name constitutes bad faith under Policy, paragraph 4(a)(iii) and that Respondent is using the disputed domain name in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <loewshotelsjobs.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: June 6, 2020
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