Loew’s Hotels, Inc. v. 志宇 赵
Claim Number: FA2009001911542
Complainant is Loew’s Hotels, Inc. (“Complainant”), represented by Natasha Reed of Foley Hoag LLP, United States. Respondent is 志宇 赵 (“Respondent”), Philippines.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <loewsds.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 8, 2020; the Forum received payment on September 8, 2020.
On September 9, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <loewsds.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 September 14, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 5, 2020 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@loewsds.com. Also on September 14, 2020, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On October 8, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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
Complainant contends as follows:
Complainant, Loew’s Hotels, Inc., operates upscale hotels and resorts.
Complainant has rights in the LOEWS mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <loewsds.com> domain name is nearly identical and confusingly similar to Complainant’s LOEWS mark since it includes the entirety of the mark, merely adding the letters “d” and “s.”
Respondent does not have rights or legitimate interests in the <loewsds.com> domain name because Respondent is not commonly known by the at-issue domain name and is not licensed to use Complainant’s LOEWS mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent hosts pornographic content and links to external websites. Additionally, Respondent’s act of typosquatting suggests a lack of rights and legitimate interests in the domain name.
Respondent registered and uses the <loewsds.com> domain name in bad faith. Respondent disrupts Complainant’s business by suggesting affiliation between Complainant and the at-issue domain. Respondent also attracts users for commercial gain by displaying third-party hyperlinks. Further, Respondent’s use of the domain name to host adult-oriented content suggests bad faith. Additionally, Respondent’s registration of the disputed domain name constitutes typosquatting. Finally, Respondent had actual knowledge of Complainant’s rights in the LOEWS mark when it registered the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in LOEWS.
Respondent is not affiliated with Complainant and is not authorized to use the LOEWS mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in LOEWS.
Respondent uses the at-issue domain name to host pornographic content and links to external websites.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the LOEWS mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <loewsds.com> domain name is composed of Complainant’s entire LOEWS trademark with the letters “ds” added, all followed by the generic top-level domain name “.com.” The differences between Complainant’s trademark and Respondent’s domain name do nothing to distinguish the at-issue domain name from Complainant’s trademark under the Policy. Therefore, the Panel concludes that Respondent’s <loewsds.com> domain name is confusingly similar to Complainant’s LOEWS trademark pursuant to Policy ¶ 4(a)(i). See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as ““志宇 赵” (software translated to “Zhiyu Zhao”) and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <loewsds.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <loewsds.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Moreover, Respondent uses the confusingly similar <loewsds.com> domain name to address a website that hosts pornography. Respondent’s use of the domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Respondent uses the confusingly similar at-issue domain name to suggest an affiliation between Complainant and the <loewsds.com> domain name. Use of <loewsds.com> to compete with a complainant or otherwise negatively affect Complainant’s business is disruptive to Complainant’s business and evidences bad faith under Policy ¶ 4(b)(iii). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Gen. Media Commc’ns, Inc. v. Vine Ent., FA 96554 (Forum Mar. 26, 2001) (finding bad faith where a competitor of the complainant registered and used a domain name confusingly similar to the complainant’s PENTHOUSE mark to host a pornographic web site).
Next, Respondent registered and uses the <loewsds.com> domain name to display third-party hyperlinks on Respondent’s <loewsds.com> website. Use of a confusingly similar domain name to display third-party commercial hyperlinks is evidence of bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
As also mentioned above concerning rights and legitimate interests, Respondent registered and uses its confusingly similar <loewsds.com> domain name to deliver internet users to a website hosting pornographic material along with other content. Such use demonstrates Respondent’s bad faith under Policy ¶ 4 (b)(iv). See Toshiba v. ran jiangfei (NAF FA1797650) (holding respondent’s registration and use of the domain names <toshiba-gulf.com> and <driversoftoshiba.com> for pornographic websites constitutes bad faith under UDRP 4(b)(iv)).
Finally, Respondent had actual knowledge of Complainant’s rights in the TOSHIBA mark when it registered <loewsds.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s LOEWS trademark. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <loewsds.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: October 8, 2020
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