Marriott International, Inc. and Marriott Worldwide Corporation v. Mazal Sali / Durmi Islam
Claim Number: FA2204001991258
Complainant is Marriott International, Inc. and Marriott Worldwide Corporation ("Complainant"), represented by Georges Nahitchevansky of Kilpatrick Townsend & Stockton LLP, New York, USA. Respondent is Mazal Sali / Durmi Islam ("Respondent"), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <marriottglobalsource.net> and <marriottglobalsource.org>, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 6, 2022; the Forum received payment on April 6, 2022.
On April 6, 2022, Porkbun LLC confirmed by email to the Forum that the <marriottglobalsource.net> and <marriottglobalsource.org> domain names are registered with Porkbun LLC and that Respondent is the current registrant of the names. 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 April 7, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 27, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@marriottglobalsource.net, postmaster@marriottglobalsource.org. Also on April 7, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 May 4, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person or entity operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") provides that a "complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder."
The WIPO Overview of WIPO Panel Views on Selected UDRP Questions sets forth factors that are normally considered when a complainant is filed against multiple respondents:
[P]anels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.
Panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in or relevant aspects of (i) the registrants’ identity(ies) including pseudonyms, (ii) the registrants’ contact information including email address(es), postal address(es), or phone number(s), including any pattern of irregularities, (iii) relevant IP addresses, name servers, or webhost(s), (iv) the content or layout of websites corresponding to the disputed domain names, (v) the nature of the marks at issue (e.g., where a registrant targets a specific sector), (vi) any naming patterns in the disputed domain names (e.g., <mark-country> or <mark-goods>), (vii) the relevant language/scripts of the disputed domain names particularly where they are the same as the mark(s) at issue, (viii) any changes by the respondent relating to any of the above items following communications regarding the disputed domain name(s), (ix) any evidence of respondent affiliation with respect to the ability to control the disputed domain name(s), (x) any (prior) pattern of similar respondent behavior, or (xi) other arguments made by the complainant and/or disclosures by the respondent(s).
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.11 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/.
Complainant notes, inter alia, that the disputed domain names were registered within two days of one another, through the same registrar and using the same privacy registration service, the same company's nameservers, and similar underlying registration data; and that the websites to which they resolve employ the same look and feel and contain similar or substantially identical content.
The Panel also notes that Respondent has not come forward to dispute the allegation that it is one entity acting under multiple aliases, nor to object to the inclusion of both domain names in this proceeding. Under the circumstances, the Panel considers it appropriate to treat the disputed domain names as being under the common control of a single person or entity. See BBY Solutions, Inc. v. VMI INC / Domain Customer 28253 / Whois Protection Service LTD, FA 1980281 (Forum Feb. 14, 2022) (treating domain names as being under common control in similar circumstances).
A. Complainant
Complainant is a corporation and its wholly-owned subsidiary. Complainant ranks among the world's largest providers of commercial hotel, restaurant, meeting, conference center, and hospitality services, with a portfolio of more than 8,000 properties in over 139 countries. Complainant uses MARRIOTT and other marks in connection with hotel, resort, timeshare, residences, and related goods and services. The first MARRIOTT hotel opened in the United States in 1957. Complainant owns trademark registrations for MARRIOTT and formatives thereof in the United States and other countries throughout the world. Complainant operates a global intranet for its employees under the name Marriott Global Source. The intranet went live in 2000 and currently has over 500,000 users.
Respondent registered the disputed domain names <marriottglobalsource.net> and <marriottglobalsource.org> via a privacy registration service in February 2022. The domain names are being used for similar websites that purport to provide information about the Marriott Global Source Intranet, displaying multiple instances of Complainant's MARRIOTT mark and copies of the logo that Complainant uses for Marriott Global Source. The websites refer to Complainant using the first person, suggesting that they are official websites of Complainant, and both sites include a prompt for the user's name and email address. A small disclaimer appears with the copyright statement at the very bottom of each website, stating that it "is not associated with the Marriott Global Source." Complainant states that Respondent is not commonly known by the domain names and has no license, permission, or other right to use Complainant's mark.
Complainant contends on the above grounds that each of the disputed domain names <marriottglobalsource.net> and <marriottglobalsource.org> is confusingly similar to its MARRIOTT mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
Each of the disputed domain names <marriottglobalsource.net> and <marriottglobalsource.org> incorporates Complainant's registered MARRIOTT trademark, adding the generic terms "global" and "source" and a top-level domain, ".net" or ".org." These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Marriott International, Inc. v. Momm Amed Ia, FA 95573 (Forum Oct. 23, 2000) (finding <wwwmarriott.com> confusingly similar to MARRIOTT); UBS AG v. Jone Key, FA 1705029 (Forum Jan. 10, 2017) (finding <ubs-global.org> confusingly similar to UBS); MTD Products Inc v. Linda Burleson, FA 1765108 (Forum Jan. 25, 2018) (finding <cubcadetsource.com> confusingly similar to CUB CADET).
The Panel considers each of the disputed domain names to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
Each of the disputed domain name incorporates Complainant's registered mark without authorization. The domain names are being used for misleading websites that pass off as Complainant, likely for the purpose of obtaining personal information from Complainant's employees or partners under false pretenses or for other fraudulent purposes. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Hobby Lobby Stores, Inc. v. MD Nasir Bin, FA 1977384 (Forum Jan. 17, 2022) (finding lack of rights or interests in similar circumstances); United Parcel Service of America, Inc. v. Horacio Taylor, FA 1955379 (Forum Aug. 16, 2021) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register two domain names incorporating Complainant's well-known registered mark, and is using the domain names for misleading websites that pass off as Complainant for what the Panel infers to be fraudulent purposes. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Hobby Lobby Stores, Inc. v. MD Nasir Bin, supra (finding bad faith registration and use in similar circumstances); United Parcel Service of America, Inc. v. Horacio Taylor, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <marriottglobalsource.net> and <marriottglobalsource.org> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 4, 2022
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