DECISION

 

Marriott International, Inc. v. stellent

Claim Number: FA2404002092507

 

PARTIES

Complainant is Marriott International, Inc. ("Complainant"), represented by Georges Nahitchevansky of Kilpatrick Townsend & Stockton LLP, New York, USA. Respondent is stellent ("Respondent"), India.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <moxyhotelgroup.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.

 

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 April 9, 2024; Forum received payment on April 9, 2024.

 

On April 10, 2024, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to Forum that the <moxyhotelgroup.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 10, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 30, 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@moxyhotelgroup.com. Also on April 10, 2024, 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 May 1, 2024, 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, founded in 1927, it is one of the world's largest and most well-known providers of commercial hotel, restaurant, meeting, conference center and hospitality services in the U.S. and internationally. Complainant develops, markets, operates, franchises, and licenses a diversified portfolio of more than 8,000 lodging, timeshare and residential properties in over 139 countries worldwide. Complainant offers a broad portfolio of hotel, residential and timeshare properties under numerous award-winning brands, including MARRIOTT HOTELS, JW MARRIOTT HOTELS, THE RITZ-CARLTON, BULGARI HOTELS & RESORTS, ST. REGIS, WESTIN, , RENAISSANCE HOTELS, AUTOGRAPH COLLECTION HOTELS, AC HOTELS BY MARRIOTT, DELTA HOTELS BY MARRIOTT, EDITION HOTELS, MOXY HOTELS, COURTYARD, FAIRFIELD INN, FAIRFIELD INN & SUITES, RESIDENCE INN, SPRINGHILL SUITES, TOWNEPLACE SUITES, PROTEA HOTELS, MARRIOTT EXECUTIVE APARTMENTS, GAYLORD HOTELS, THE RITZ-CARLTON RESIDENCES, MARRIOTT VACATION CLUB, LE MERIDIEN, SHERATON, W HOTELS, THE LUXURY COLLECTION, TRIBUTE PORTFOLIO, CITY EXPRESS BY MARRIOTT and DESIGNS HOTELS. Over the course of more than 90 years of operation, Complainant has won a loyal customer base, and has become one of the most recognized, celebrated, and valuable hotel providers in the world. The renown of Complainant and its hotel brands is evident from press reports and brand awareness surveys. In 2014, Complainant launched a new line of affordable hotels aimed at millennials and younger consumers under the name MOXY. The first MOXY hotel opened in Milan in September 2014. Since then, the MOXY brand of hotels has expanded to more than 145 hotels spread out throughout Europe, North America, Asia and Australia. In particular, Complainant also owns and operates a MOXY hotel in India in Bengaluru. Complainant's MOXY hotels are considered to be a select hotel brand that combines stylish design, thoughtful, spirited and fun guest experiences, and modern service at an affordable price point. MOXY hotels are known to be lively hotels with playful designs, cozy rooms and social spaces. Indeed, MOXY hotels typically feature colorful workspaces and areas for lounging that include, inter alia, references to local culture, games such as table tennis, boardroom sized tables for working, abundant power and USB outlets, free Wi-Fi and upbeat music, making such areas perfect places to work or play. Complainant uses the domain name <moxyhotels.com> to promote its MOXY hotels. Complainant asserts rights in the MOXY mark through its registration in the United States in 2016. The mark is registered elsewhere around the world, including in India.

 

Complainant alleges that the disputed domain name is identical or confusingly similar to its MOXY mark because it incorporates the mark in its entirety, merely adding the generic/descriptive terms "hotel group", together with the ".com" generic top-level domain ("gTLD"). Complainant cites UDRP precedents to support its position.

 

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 MOXY mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the resolving website displays Complainant's mark and distinctive logo, and purports to promote a competing hotel and restaurant group with a claimed alleged presence in possibly Dubai (although no address for the alleged hotel is provided). Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website purports to offer competing services. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the mark MOXY dating back to 2016 and uses it to provide hotel services around the world.

 

The disputed domain name was registered in 2023.

 

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

 

The resolving website displays Complainant's mark and distinctive logo, and purports to offer competing services.

 

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 MOXY mark in its entirety, merely adding the generic/descriptive terms "hotel group" and the ".com" generic top-level domain ("gTLD"). Under Policy ¶ 4(a)(i), adding a gTLD and/or generic/descriptive terms is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore 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 mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information can be used to determine if a respondent is commonly known by the disputed domain name. 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). Here, the WHOIS information for the disputed domain name shows that the registrant's name is "stellent". Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Complainant presents evidence showing that the resolving website purports to offer hotel services that compete with those of Complainant. The use of a domain name to sell products or services that compete directly with a complainant's business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that "use of a domain to sell products and/or services that compete directly with a complainant's business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)."); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site). As such, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a noncommercial or fair use under Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. 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, the resolving website purports to offer hotel services that compete with those of Complainant. The use of a disputed domain name to offer products or services similar to a complainant's evinces an intent to attract internet users for commercial gain per Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA 1612750 (Forum May 13, 2015) ("The Panel agrees that Respondent's use of the website to display products similar to Complainant's, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv)."); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA 1579141 (Forum Oct. 15, 2014) ("Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant."). As such, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).

 

Further, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the resolving website displays Complainant's mark and distinctive logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain name and that this constitutes bad faith 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 <moxyhotelgroup.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: May 1, 2024