Choice Hotels International, Inc. v. Hasan Iqbal
Claim Number: FA2203001989746
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Diana S. Bae of ArentFox Schiff LLP, District of Columbia, USA. Respondent is Hasan Iqbal (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <choiceadvantage.one>, registered with Porkbun 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 March 25, 2022; the Forum received payment on March 25, 2022.
On March 25, 2022, Porkbun LLC confirmed by e-mail to the Forum that the <choiceadvantage.one> domain name is registered with Porkbun LLC and that Respondent is the current registrant of the name. Porkbun LLC has verified that Respondent is bound by the Porkbun 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 March 29, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 2022 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@choiceadvantage.one. Also on March 29, 2022, 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 April 25, 2022, 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 provides hotel and motel services. It is one of the world’s largest lodging franchisors, with over 7,000 hotels in 40 countries and territories throughout the world. Complainant has rights in the CHOICEADVANTAGE mark based upon its registration in the United States in 2006. The mark is registered elsewhere around the world.
Complainant alleges that the disputed domain name is identical or confusingly similar to its CHOICEADVANTAGE mark because it incorporates the mark in its entirety and merely adds the “.one” generic top level domain (“gTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s CHOICEADVANTAGE mark. 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 because Respondent uses the disputed domain to pass itself off as affiliated with Complainant: the resolving webpage displays Complainant’s mark and logo; the resolving website has a page titled “About Choice Hotels” which describes Complainant; one of the resolving webpages copies exact wording from Complainant’s webpages.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because Respondent uses the disputed domain name to pass itself off as affiliated with Complainant. Complainant attempts to collect personal information from unsuspecting users of the website through a login page. Additionally, Respondent had constructive and actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CHOICEADVANTAGE and uses it to provide hotel and motel services.
Complainant’s rights in its mark date back to at least 2006.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays Complainant’s mark and logo, and material copied from Complainant’s legitimate website; one of the resolving webpages describes Complainant; a login page can be used to collect user’s personal information.
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 CHOICEADVANTAGE mark in its entirety, merely adding the “.one” gTLD. Domain names which incorporate the entire mark are usually considered confusingly similar, while adding a gTLD generally creates no distinction between a complainant’s mark and a disputed domain name under Policy ¶ 4(a)(i). See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”). Therefore the Panel finds that the disputed domain name is identical to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: when no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy 4 ¶ (c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Here, the WHOIS information lists the registrant of the disputed domain name as “Hasan Iqbal.” Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant uses the disputed domain name to pass itself off as Complainant: Complainant provides evidence showing that the resolving webpage displays Complainant’s mark and logo; the resolving website has a page titled “About Choice Hotels” which describes Complainant; one of the resolving webpages copies exact wording from Complainant’s webpages. Under Policy ¶¶ 4(c)(i) and (iii), past panels have found no bona fide offering of goods or services, nor any legitimate noncommercial or fair use where the respondent uses the domain name to pass itself off as affiliated with the complainant. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (refusing to find rights and legitimate interests in a domain name on the part of a respondent when the disputed domain name “resolves to a website that Respondent has designed to mimic Complainant’s own in an attempt to pass itself off as Complainant”). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
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, Respondent uses the disputed domain name to pass off as Complainant. Consumers visiting the resolving website are likely to be confused as to whether Respondent and/or its website is affiliated in some way with Complainant; and/or the disputed domain name or the associated website are endorsed, authorized, or sponsored by Complainant, none of which are true. This is a form of bad faith use of the disputed domain name. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Bank of America Corp. v. Out Island Props., Inc., FA 154531 (Forum June 3, 2003) (bad faith established “[s]ince the disputed domain names contain entire versions of Complainant’s marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant’s affiliation with the resulting search engine website.”). Therefore the Panel finds that Respondent registered and uses the disputed domain in bad faith under the Policy.
Further, Complainant presents evidence showing that a login page at the resolving website can be used to collect users’ personal information. This is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). Therefore the Panel finds bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and logo and text copied from Complainant’s legitimate website. 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <choiceadvantage.one> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 25, 2022
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