DECISION

 

Ramada International, Inc. and Ramada Worldwide, Inc. v. hasan tomakin

Claim Number: FA2407002108097

 

PARTIES

Complainant is Ramada International, Inc. and Ramada Worldwide, Inc. ("Complainant"), represented by Susan L. Crane, New Jersey, USA. Respondent is hasan tomakin ("Respondent"), Turkey.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <casinoramada40.com>, <casinoramada41.com>, <casinoramada42.com>, <casinoramada43.com>, <casinoramada44.com>, <casinoramada45.com>, <casinoramada47.com>, <casinoramada48.com>, <casinoramada49.com>, <casinoramada50.com> and <casinoramada51.com> (collectively "Domain Names"), registered with GoDaddy.com, LLC.

 

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.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on July 25, 2024; Forum received payment on July 25, 2024.

 

On July 25, 2024, GoDaddy.com, LLC confirmed by e-mail to Forum that the <casinoramada40.com>, <casinoramada41.com>, <casinoramada42.com>, <casinoramada43.com>, <casinoramada44.com>, <casinoramada45.com>, <casinoramada47.com>, <casinoramada48.com>, <casinoramada49.com>, <casinoramada50.com> and <casinoramada51.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 July 29, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 19, 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@casinoramada40.com, postmaster@casinoramada41.com, postmaster@casinoramada42.com, postmaster@casinoramada43.com, postmaster@casinoramada44.com, postmaster@casinoramada45.com, postmaster@casinoramada47.com, postmaster@casinoramada48.com, postmaster@casinoramada49.com, postmaster@casinoramada50.com and postmaster@casinoramada51.com. Also on July 29, 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 August 20, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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 Names be transferred from Respondent to Complainant.

 

MULTIPLE COMPLAINANTS

In the instant proceedings, there are two Complainants.  Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") provides that "[a]ny person or entity may initiate an administrative proceeding by submitting a complaint."  Forum's Supplemental Rule 1(e) defines "The Party Initiating a Complaint Concerning a Domain Name Registration" as a "single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint." 

 

Previous panels have interpreted Forum's Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int'l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:

 

It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.

 

In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark.

 

The Panel has reviewed the Complaint and is satisfied that that each of the Complainants is a wholly owned subsidiary of Wyndham Hotels & Resorts, Inc. and share global ownership of the RAMADA mark.  This is sufficient to establish a sufficient nexus or link between the Complainants such that they should be treated as a single entity in this proceeding referred to in the singular, as "Complainant".

 

PARTIES' CONTENTIONS

A. Complainant

Complainant operates a well-known global chain of hotels and casinos.  Complainant has rights in the RAMADA mark based upon registration in numerous jurisdictions, including with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 849,591, registered May 21, 1968). Respondent's domain names are confusingly similar to the RAMADA mark as they include the entire RAMADA mark and add the word "casino" and a number, along with the ".com" generic top-level domain ("gTLD"). 

 

Respondent lacks rights or legitimate interests in the Domain Names since Respondent is not licensed or authorized to use Complainant's RAMADA mark and is not commonly known by the Domain Names. Additionally, Respondent does not use the Domain Names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Each of the Domain Names resolves to a third-party gambling website offering services unrelated to those offered by the Complainant for which Respondent presumably receives revenue.

 

Respondent registered and uses the Domain Names in bad faith by disrupting Complainant's business and causing consumer confusion for commercial gain. Finally, Respondent had constructive and/or actual knowledge of Complainant's rights in the RAMADA marks given the nature of the websites at the Domain Names, which include reproducing the Complainant's RAMADA mark and logo.  

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

C. Additional Submissions

On July 30, 2024 Complainant submitted an additional written submission under Forum Supplemental Rule 7 noting that the Domain Names had been blocked by Turkish government regulators.

 

FINDINGS

Complainant holds trademark rights for the RAMADA mark.  Each of the Domain Names is confusingly similar to Complainant's RAMADA mark.  Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names in bad faith.

 

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

Complainant has rights in the RAMADA mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g. Reg. No. 849,591, registered May 21, 1968).  Registration of a mark with the USPTO is sufficient to establish rights in that mark.  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).").

 

The Panel finds that each of the Domain Names is confusingly similar to the RAMADA mark as they each incorporate the entire RAMADA mark while adding generic terms and numbers ("casino" and "41") and the ".com" gTLD.  Such changes are insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i) analysis.  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); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (finding top-level domains are irrelevant for purposes of Policy ¶ 4(a)(i) analysis).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names.  In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.  See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.").  The Panel holds that Complainant has made out a prima facie case.

 

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the RAMADA mark.  Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.  WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged.  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)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where "Privacy Service" was listed as the registrant of the disputed domain name).  The WHOIS lists "hasan tomakin" as registrant of record.  Coupled with Complainant's unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii).

 

Each of the Domain Names resolves to a website that reproduces the Complainant's RAMADA mark and logo and offers commercial content unrelated to the Complainant's business (namely gaming content).  The use of a domain name to divert users, for commercial gain, to a website containing unrelated content such as gaming content is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).  See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) ("Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent's unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).").  Nor is reproducing the Complainant's mark and logo for the purpose of passing off as the Complainant; see Am. Int'l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant's mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

The Panel finds on the balance of probabilities that, at the time of registration of the Domain Names, (between March and June 2024), Respondent had actual knowledge of Complainant's RAMADA mark.  There is no obvious explanation, and none has been provided by Respondent, for a party to register 11 domain names that consist of the registered RAMADA  mark and a term that refers to the casino services offered under the RAMADA mark, redirect those Domain Names to websites offering gaming content under that mark and the Complainant's logo absent any awareness of Complainant and its RAMADA  mark (and intention to capitalize on Complainant's reputation in its RAMADA mark).  In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).

 

The Panel finds that Respondent registered and has used the Domain Names in bad faith in order to resolve to websites that offer gaming content for which Respondent would be expected to receive revenue.  Use of confusingly similar domain names to attract users to a website through which Respondent may receive revenue through advertisements and other means can be bad faith per Policy ¶ 4(b)(iv). See Tumblr, Inc. v. Ailing Liu, FA 1402001543807 (Forum Mar. 24, 2014) ("Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant's business and respondent is likely collecting fees.").

 

The Panel finds Complainant has satisfied 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 <casinoramada40.com>, <casinoramada41.com>, <casinoramada42.com>, <casinoramada43.com>, <casinoramada44.com>, <casinoramada45.com>, <casinoramada47.com>, <casinoramada48.com>, <casinoramada49.com>, <casinoramada50.com> and <casinoramada51.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: August 21, 2024