Choice Hotels International, Inc. v. mark kulekci / Radisson Hotel JFK Airport
Claim Number: FA2307002052088
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Ashley M. Bennett Ewald of TAFT STETTINIUS & HOLLISTER LLP, Minnesota, USA. Respondent is mark kulekci / Radisson Hotel JFK Airport (“Respondent”), Alabama, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radissonhoteljfkairport.com>, registered with Wix.com Ltd.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on July 6, 2023; Forum received payment on July 6, 2023.
On July 10, 2023, Wix.com Ltd. confirmed by e-mail to Forum that the <radissonhoteljfkairport.com> domain name is registered with Wix.com Ltd. and that Respondent is the current registrant of the name. Wix.com Ltd. has verified that Respondent is bound by the Wix.com Ltd. 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 July 13, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 2, 2023 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@radissonhoteljfkairport.com. Also on July 13, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On August 7, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
1. Respondent’s <radissonhoteljfkairport.com> domain name is confusingly similar to Complainant’s RADISSON mark.
2. Respondent does not have any rights or legitimate interests in the <radissonhoteljfkairport.com> domain name.
3. Respondent registered and uses the <radissonhoteljfkairport.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant operates the well-known Radisson hotels and holds a registration for the RADISSON mark with the United States Patent and Trademark Office (the “USPTO”) (Reg. No. 920862, registered Sept. 21, 1971). Complainant also holds common law rights in the RADISSON HOTEL JFK AIRPORT mark, used for years in connection with a hotel located in Jamaica, New York.
Respondent registered the <radissonhoteljfkairport.com> domain name on December 8, 2022, and uses it to conduct a phishing scheme.
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”).
The Panel finds that Complainant has rights in the RADISSON mark through registration with the USPTO. 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).”).
Respondent’s <radissonhoteljfkairport.com> domain name uses Complainant’s RADISSON mark and references one of Complainant’s well-known hotels, the name of which is comprised of descriptors of the hotel’s location, and adds the “.com” gTLD. These changes do not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.) Therefore, the Panel finds that Respondent’s <radissonhoteljfkairport.com> domain name is confusingly similar to Complainant’s RADISSON mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 contends that Respondent has no rights or legitimate interests in the <radissonhoteljfkairport.com> domain name, as Respondent is not commonly known by the disputed domain name. Complainant has not given Respondent permission to use its RADISSON mark. The WHOIS identifies “mark kulekci / Radisson Hotel JFK Airport” as the registrant. Complainant states that a former employee is named Mark Kulekci, but he is no longer an affiliate of Complainant. There is no corroborating evidence to show any support for the reference to “Radisson Hotel JFK Airport” in the WHOIS information. Therefore, the Panel finds that Respondent is not commonly known by the <radissonhoteljfkairport.com> domain name and thus has no rights under Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA 1620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant argues that Respondent does not use the <radissonhoteljfkairport.com> domain name for a bona fide offering of goods or service or a legitimate noncommercial or fair use as Respondent uses it for a phishing scheme. Using a disputed domain name to conduct a phishing scheme is not a bona fide offering of goods or service or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain name to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). Complainant provides evidence that Respondent uses the disputed domain name to impersonate Complainant in a job posting. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered and uses the <radissonhoteljfkairport.com> domain name in bad faith as Respondent registered the disputed domain name to pass off as Complainant in an email scheme. Registering a disputed domain name with the intent to pass off as a complainant in connection with a job posting scam disrupts Complainant’s business and evinces bad faith registration and use under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also UBS AG v. SMS Vice/Ubs, FA 1866179 (Forum Nov. 4, 2019) (finding bad faith where respondent registered and used the domain <ubscash.com> to disrupt the complainant’s business and commercially benefit from the disputed domain name by attempting to impersonate complainant in order to conduct a fraudulent phishing scheme for commercial gain). Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv).
Complainant argues that Respondent registered the <radissonhoteljfkairport.com> domain name with actual knowledge of Complainant’s rights in the RADISSON mark based on Respondent’s use of the RADISSON mark to pose as Complainant. The Panel agrees, noting the fame of the RADISSON mark, and finds further bad faith under Policy ¶ 4(a)(iii). See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <radissonhoteljfkairport.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 8, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page