DECISION

 

Loew's Hotels, Inc. v. luzhijun luzhijun

Claim Number: FA2312002076754

 

PARTIES

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

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <loewsbeverlyhills.com> ('the Domain Name'), registered with Aceville Pte. Ltd.

 

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.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 27, 2023; Forum received payment on December 27, 2023.

 

On December 28, 2023, Aceville Pte. Ltd. confirmed by e-mail to Forum that the <loewsbeverlyhills.com> Domain Name is registered with Aceville Pte. Ltd. and that Respondent is the current registrant of the name. Aceville Pte. Ltd. has verified that Respondent is bound by the Aceville Pte. 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 December 28, 2023, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of January 17, 2024 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@loewsbeverlyhills.com. Also on December 28, 2023, the Chinese and English 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 in Chinese and English.

 

On January 18, 2024 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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.

 

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING

Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent who is based in the USA and has registered a Domain Name focussing in on a place in the USA is conversant and proficient in the English language. After considering the circumstances of the present case, the Panel decides that the proceedings should be in English.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant's contentions can be summarised as follows:

 

The Complainant owns the trade mark LOEWS registered, inter alia, in the USA for hotel services with first use recorded as 1962. It owns a number of domain names consisting of its trade mark and a place name (including several with place names in the USA) registered in the .com gTLD.

 

The addition of the generic geographical term 'Beverly Hills' and the gTLD .com do not distinguish the Domain Name from the Complainant's mark.

 

Respondent is not authorised by the Complainant to use, or commonly known by, the Domain Name.

 

The Domain Name registered in 2023 is not being used. The passive holding of a domain name containing a well known mark does not show a fair non commercial use or a bona fide offering of goods and services. Respondent has crafted the Domain Name so it appears on its face to be affiliated with the Complainant and does not have any rights or legitimate interests in the Domain Name.

 

Intention to capitalize on a well known mark by passive holding of a domain name is bad faith registration and use.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 The Complainant owns the trade mark LOEWS registered, inter alia, in the USA for hotel services with first use recorded as 1962. It owns a number of domain names consisting of its trade mark and a place name (including places in the USA) registered in the .com gTLD.

 

The Domain Name registered in 2023 is not being used.

 

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 Domain Name in this Complaint combines the Complainant's LOEWS mark (registered in the USA for hotel services with first use recorded as 1962), the generic geographical terms 'Beverly Hills' and the gTLD .com. 

 

The addition of the generic geographical term 'Beverly Hills' does not prevent confusing similarity between the Domain Name and the Complainant's mark. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant's mark under Policy 4(a)(i)). 

 

The gTLD .com does not serve to distinguish the Domain Name from the Complainant's mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

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. There is no evidence to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (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).

 

There has been no use of the Domain Name. See Hewlett-Packard Co. v Shemesh, FA 434145 (Forum Apr. 20, 2005) (finding inactive use is not a bona fide offering of goods or services pursuant to Policy 4(c)(i).).

 

Further the Domain Name appears to have been deliberately chosen for its inherent association with the Complainant and to mimic the way the Complainant constructs domain names to make a misrepresentation on its face which is confusing and is not a bona fide offering of goods or services or a legitimate non commercial or fair use. See SwissCare Europe v. michael click, Active OutDoors LLC Case No. D2022-1496.

 

The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant and set out herein.

 

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 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. The Respondent is passively holding the Domain Name. Passive holding of a domain name containing a mark with a reputation that will inevitably be associated with a trade mark owner without legitimate excuse is bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).

 

The mimicking of the structure of other domain names owned by the Complainant shows the Respondent has good knowledge of the Complainant and its rights, business and services.

 

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.

 

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 <loewsbeverlyhills.com> Domain Name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: January 18, 2024