DECISION

 

Loew's Hotels, Inc. v. Wenza Brown

Claim Number: FA2309002064195

PARTIES

Complainant is Loew's Hotels, Inc. ("Complainant"), represented by Natasha Reed of Foley Hoag LLP, New York, USA. Respondent is Wenza Brown ("Respondent"), Texas, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <loewshoteis.com>, registered with NameCheap, Inc..

 

PANEL

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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 29, 2023; Forum received payment on September 29, 2023.

 

On September 29, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <loewshoteis.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 October 4, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 24, 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@loewshoteis.com. Also on October 4, 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 October 25, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it operates upscale hotels and resorts. Complainant has rights in the LOEWS and LOEWS HOTELS marks based upon their registration in the United States in, respectively, 1990 and 2020.

 

Complainant alleges that the disputed domain name is nearly identical and confusingly similar to its LOEWS mark since it includes the entirety of the mark, merely adding the misspelled word "hoteis" (referring to "hotels") and the ".com" generic top-level domain ("gTLD"); the disputed domain name is also confusingly similar to Complainant's LOEWS HOTELS mark as it is a simple misspelling of the mark, with the addition of the ".com" gTLD.

 

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its mark in any way. Respondent is not using the disputed domain name for a bona fide offering of goods or services, nor for a legitimate noncommercial or fair use. Instead, Respondent used the disputed domain name to send an email impersonating an employee of the Complainant to fool one of Complainant's customers to settle an outstanding invoice totaling around $15,000 (USD) for services rendered by Complainant to an account set up by Respondent and/or accomplices. Respondent engages in typosquatting.

 

According to Complainant, Respondent registered and uses the disputed domain name in bad faith. The disputed domain name was used in furtherance of a fraudulent email phishing scheme. Respondent registered the disputed domain name with actual knowledge of Complainant's rights in its mark. In a prior UDRP proceeding, the Panel ordered Respondent to transfer a domain name partly on the basis that the complainant (which was not the instant Complainant) submitted evidence that Respondent used the domain name in question to impersonate an employee of that complainant and circulate fraudulent invoices.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the marks LOEWS and LOEWS HOTELS and uses them to operate upscale hotels and resorts.

 

Complainant's rights in its marks date back to, respectively, 1990 and at least 2020.

 

The disputed domain name was registered in 2023.

 

Complainant has not licensed or otherwise authorized Respondent to use its marks.

 

The disputed domain name was used in furtherance of a fraudulent email phishing scheme.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 disputed domain name incorporates Complainant's LOEWS mark in its entirety, merely adding the tern "hoteis" (an obvious misspelling of the generic term "hotels") and the ".com" gTLD; further, it is a mere misspelling of Complainant's LOEWS HOTELS mark, with the addition of the ".com" gTLD. Such changes are insufficient to overcome confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i). See Blink Health Inc. v. Teddy Online Boot / fred ted, FA2108001960052 (Forum Sept. 20, 2021)) (finding confusing similarity when "The disputed domain name incorporates Complainant's BLINK mark in its entirely merely adding the term 'phamaceuticals,' a misspelling of the term 'pharmaceuticals', along with the ".com" gTLD."); see also Transamerica Corporation v. Zhichao Yang, FA2109001962452 (Forum Oct. 1, 2021) (finding confusing similarity when "Respondent's at-issue domain names each contain Complainant's TRANSAMERICA trademark along with either the prefix "com" or "my" and followed by the generic term "employee benefits," or simply followed by a misspelled variant of the term "employee benefits."); see also Liberty Mutual Insurance Company v. Texas Internet, FA1006001330686 (Forum August 3, 2010) (holding <libertymutul.com> domain name is confusingly similar to Complainant's LIBERTY MUTUAL mark as the respondent simply omitted the letter "a"); see also Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) ("The relevant comparison then resolves to the trademark, TWITCH, with the term, 'titch,' which, as can be readily seen, merely removes the letter 'w' from the trademark.  In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy."). Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record identifies the registrant as "Wenza Brown". The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Respondent used the disputed domain name to send an email impersonating an employee of the Complainant to fool one of Complainant's customers to settle an outstanding invoice totaling around $15,000 (USD) for services rendered by Complainant to an account set up by Respondent and/or accomplices. Previous panels have determined that a respondent's attempt to pass itself off as a complainant, or a respondent's attempt to phish, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum February 26, 2015) ("The Panel agrees that the respondent's apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii)."); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) ("The Panel finds that Respondent's attempt to "phish" for users' personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)."). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).

 

Further, Respondent engages in typosquatting by misspelling Complainant's LOEWS HOTELS mark. Such typosquatting is evidence that Respondent lacks rights and legitimate interests in the domain. See Universal American Corp. v. Whois Privacy Protection Service, Inc. / WhoisAgent, FA1392665 (Forum July 13, 2011) (finding that using a domain name which varies from the registered mark only by a slight typographical error indicates that Respondent is attempting to "typosquat "on the disputed domain name and that such typosquatting is evidence of respondent's lack of rights or legitimate interests in the disputed domain name); see also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had "engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).").

 

For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Complainant refers to a previous UDRP case involving Respondent and a different complainant. Since, as discussed below, other elements are dispositive for the instant case, the Panel finds that it does not need to consider that previous case.

 

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's marks. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme. Previous panels have determined that a respondent's attempt to pass itself off as a complainant and to induce fund transfers constitute bad faith use in the sense of the Policy. See National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum Sept. 22, 2014) (finding bad faith where respondent fraudulently attempted to induce wire transfers by sending e-mails purporting to be from complainant's President and CEO); see also Capital One Financial Corporation and Capital One Bank v. Austin Howel, FA 289304 (Forum Aug. 11, 2004) (finding bad faith where respondent used complainant's mark to fraudulently induce transfer of credit and personal identification information). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).

 

Further, also as already noted, Respondent engages in typosquatting by misspelling Complainant's LOEWS HOTELS mark. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) ("Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii)."). As such, the Panel finds bad faith typosquatting under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <loewshoteis.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Richard Hill, Panelist

Dated: October 25, 2023