Loew’s Hotels, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2109001963878
Complainant is Loew’s Hotels, Inc. (“Complainant”), represented by Natasha Reed of Foley Hoag LLP, New York, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <loewshtel.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 15, 2021; the Forum received payment on September 15, 2021.
On September 16, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <loewshtel.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 22, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 12, 2021 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@loewshtel.com. Also on September 22, 2021, 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 13, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 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 “hotl” (referring to “hotel”) 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 does not have rights or legitimate interests in the disputed domain name because Respondent is not commonly known by the disputed domain name and is not licensed to use Complainant’s marks. 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 displays links to websites offering services similar to those offered by Complainant. Furthermore, Respondent engages in typosquatting.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent is a notorious cybersquatter as shown by previous UDRP decisions. Additionally, Respondent attracts users for commercial gain by displaying third-party commercial links. Furthermore, Respondent engages in typosquatting. Finally, Respondent had actual knowledge of Complainant’s rights in its marks when it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 2021.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name resolves to a website that displays advertising links to competing services. Respondent has engaged in a pattern of bad faith registration and use.
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 disputed domain name incorporates Complainant’s LOEWS mark in its entirety, merely adding the tern “hotl” (an obvious misspelling of the generic term “hotel”) 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 Aug. 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).
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (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.). Here, the WHOIS information of record lists the registrant as “Carolina Rodrigues / Fundacion Comercio Electronico”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website displays click-through advertising links to services similar to those offered by Complainant. Use of a disputed domain name to host commercial hyperlinks is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Thus, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use per 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.
Respondent 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 attracts users for commercial gain by displaying third-party commercial links at the disputed domain. Use of a confusingly similar domain name to display third-party commercial hyperlinks may be 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)). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Further, Complainant cites UDRP cases which evidence that Respondent is a notorious cybersquatter that has lost many previous UDRP decisions. Bad faith may be found pursuant to Policy ¶ 4(b)(ii) where a respondent has displayed a pattern of bad faith registration based on a history of negative UDRP decisions. See Azar Int’l Inc. v. Texas Int’l Prop. Assocs., FA 1122600 (Forum Feb. 18, 2008) (determining that the respondent’s forty-one prior UDRP rulings were evidence of bad faith registration under Policy ¶ 4(b)(ii)); see also AbbVie Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA2107001954235 (Forum Aug. 2, 2021) (“Complainant notes that there have been 172 adverse decisions against Respondent with Forum as well as over 190 adverse decisions at WIPO. Thus, the Panel agrees that Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(ii)”); see also Amazon Technologies, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA2106001952536 (Forum July 23, 2021) (“Respondent has suffered more than 100 adverse UDRP decisions. Respondent’s pattern of domain name abuse suggests Respondent’s bad faith registration and use of the at-issue domain names in the instant proceeding under Policy ¶ 4(b)(ii).”). The Panel therefore find bad faith registration and use per Policy ¶ 4(b)(ii).
Finally, 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <loewshtel.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 14, 2021
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