Choice Hotels International, Inc. v. Above.com Domain Privacy
Claim Number: FA1012001364256
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Amy E. Salomon of Arent Fox LLP, Washington D.C., USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <choicehotelsw.com>, <choiceprivildges.com>, <choiceprivlage.com>, <comfortinnlandoverhills.com>, <comfortinsuites.com>, <comfort-suites-south-bend.com>, <econolodgeniagara.com>, <econolodgestreetsboro.com>, <icchoicehotels.com>, and <qualityinnatlanticcity.com>, registered with ABOVE.COM PTY LTD.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 20, 2010; the National Arbitration Forum received payment on December 20, 2010.
On December 21, 2010, ABOVE.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the choicehotelsw.com>, <choiceprivildges.com>, <choiceprivlage.com>, <comfortinsuites.com>, <icchoicehotels.com>, and <qualityinnatlanticcity.com> domain names are registered with ABOVE.COM PTY LTD. and that Respondent is the current registrant of the names. ABOVE.COM PTY LTD. has verified that Respondent is bound by the ABOVE.COM PTY LTD. 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 January 4, 2011, ABOVE.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <comfortinnlandoverhills.com>, <econolodgeniagara.com>, and <econolodgestreetsboro.com> domain names are registered with ABOVE.COM PTY LTD. and that Respondent is the current registrant of the names. ABOVE.COM PTY LTD. has verified that Respondent is bound by the ABOVE.COM PTY LTD. 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”).
The National Arbitration Forum contacted ABOVE.COM PTY LTD. to verify that the <comfort-suites-south-bend.com> domain name was indeed registered with ABOVE.COM PTY LTD. The registrar, ABOVE.COM PTY LTD., did not verify that the <comfort-suites-south-bend.com> domain name was registered with them. The National Arbitration Forum contacted Complainant and informed them that ABOVE.COM PTY LTD. was not able to verify the registration of the <comfort-suites-south-bend.com> domain name and notified Complainant that the domain name appeared to be available for registration. Complainant submitted correspondence to the National Arbitration Forum indicating that the <comfort-suites-south-bend.com> was now registered by Complainant. Because Complainant was able to acquire this domain name on its own, the decision below contains no further references to the <comfort-suites-south-bend.com> domain name. The Complainant elected to proceed with the Complaint as to the remaining disputed domain names.
On January 11, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 31, 2011 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@choicehotelsw.com, postmaster@choiceprivildges.com, postmaster@choiceprivlage.com, postmaster@comfortinnlandoverhills.com, postmaster@comfortinsuites.com, postmaster@econolodgeniagara.com, postmaster@econolodgestreetsboro.com, postmaster@icchoicehotels.com, and postmaster@qualityinnatlanticcity.com. Also on January 11, 2011, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 9, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <choicehotelsw.com> and <icchoicehotels.com> domain names are confusingly similar to Complainant’s CHOICE HOTELS mark.
Respondent’s <choiceprivildges.com> and <choiceprivlage.com> domain names are confusingly similar to Complainant’s CHOICE PRIVILEGES mark.
Respondent’s <comfortinnlandoverhills.com> domain name is confusingly similar to Complainant’s COMFORT INN mark.
Respondent’s <comfortinsuites.com> domain name is confusingly similar to Complainant’s COMFORT INN & SUITES mark.
Respondent’s <econolodgeniagara.com> and <econolodgestreetsboro.com> domain names are confusingly similar to Complainant’s ECONO LODGE mark.
Respondent’s <qualityinnatlanticcity.com> domain name is confusingly similar to Complainant’s QUALITY INN mark.
2. Respondent does not have any rights or legitimate interests in the <choicehotelsw.com>, <choiceprivildges.com>, <choiceprivlage.com>, <comfortinnlandoverhills.com>, <comfortinsuites.com>, <econolodgeniagara.com>, <econolodgestreetsboro.com>, <icchoicehotels.com>, and <qualityinnatlanticcity.com> domain names.
3. Respondent registered and used the <choicehotelsw.com>, <choiceprivildges.com>, <choiceprivlage.com>, <comfortinnlandoverhills.com>, <comfortinsuites.com>, <econolodgeniagara.com>, <econolodgestreetsboro.com>, <icchoicehotels.com>, and <qualityinnatlanticcity.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Choice Hotels International, Inc., holds trademark registrations with IP Australia for its CHOICE HOTELS (Reg. No. 665,724 issued July 3, 1995), CHOICE PRIVILEGES (Reg. No. 888,111 issued September 4, 2001), COMFORT INN (Reg. No. 1,076,486 issued June 17, 2005), COMFORT INN & SUITES (Reg. No. 1,081,353 issued July 7, 2005), ECONO LODGE (Reg. No. 532,509 issued April 10, 1990), and QUALITY INN marks (Reg. No. 1,085,605 issued March 20, 2008) in connection with hotel services, hotel reservation services, a hotel rewards program for preferred customers, and related goods and services.
Respondent registered the <choicehotelsw.com> domain name on November 27, 2009, the <choiceprivildges.com> domain name on July 20, 2008, the <choiceprivlage.com> domain name on June 2, 2009, the <comfortinnlandoverhills.com> domain name on November 24, 2009, the <comfortinsuites.com> domain name on February 14, 2008, the <econolodgeniagara.com> domain name on November 27, 2009, the <econolodgestreetsboro.com> domain name on November 22, 2009, the <icchoicehotels.com> domain name on May 10, 2007, and the <qualityinnatlanticcity.com> domain name on March 24, 2008. The <choicehotelsw.com>, <choiceprivildges.com>, <choiceprivlage.com>, <comfortinnlandoverhills.com>, <comfortinsuites.com>, <econolodgeniagara.com>, <icchoicehotels.com>, and <qualityinnatlanticcity.com> domain names currently resolve to pay-per-click websites featuring links to competing hotel reservation services. The <econolodgestreetsboro.com> previously resolved to a similar pay-per-click site, but currently resolves to an inactive website.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant asserts rights in its CHOICE HOTELS (Reg. No. 665,724 issued July 3, 1995), CHOICE PRIVILEGES (Reg. No. 888,111 issued September 4, 2001), COMFORT INN (Reg. No. 1,076,486 issued June 17, 2005), COMFORT INN & SUITES (Reg. No. 1,081,353 issued July 7, 2005), ECONO LODGE (Reg. No. 532,509 issued April 10, 1990), and QUALITY INN marks (Reg. No. 1,085,605 issued March 20, 2008) by virtue of its registration of the marks with IP Australia. The Panel finds that Complainant’s registration of the marks with the trademark authority of Australia is sufficient evidence of Complainant’s rights in the marks pursuant to Policy ¶ 4(a)(i). See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a trademark authority); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant asserts that Respondent’s <choicehotelsw.com> and <icchoicehotels.com> domain names are confusingly similar to Complainant’s CHOICE HOTELS mark. The disputed domain names incorporate the entirety of Complainant’s mark, absent the space between the terms, and add either the letter “w” or the letters “”" and “c,” along with the addition of the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of indiscriminate letters is insufficient to differentiate the disputed domain names from the mark. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb. Forum Aug. 28, 2002) (finding that the <aolrj.com> domain name was confusingly similar to the complainant’s AOL mark because “…the addition of a string of indiscriminate letters to a famous mark in a second level domain does not differentiate the domain name from the mark.”). The Panel also finds that the removal of spaces and the addition of a gTLD do not adequately distinguish the disputed domain names. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i). Therefore, the Panel finds, pursuant to Policy ¶ 4(a)(i), that Respondent’s <choicehotelsw.com> and <icchoicehotels.com> domain names are confusingly similar to Complainant’s CHOICE HOTELS mark.
Complainant asserts that Respondent’s <choiceprivildges.com> and <choiceprivlage.com> domain names are confusingly similar to Complainant’s CHOICE PRIVILEGES mark. The <choiceprivildges.com> domain name merely removes the space between the terms, replaces the letter “e” in Complainant’s mark with the letter “d” in the domain name, and adds the gTLD “.com.” The <choiceprivlage.com> domain name also removes the spaces and adds the gTLD “.com,” along with the omission of the letters “i” and “s” from the second term in the mark and the replacement of the letter “e” with the letter “a.” The Panel finds that none of the alterations in the <choiceprivildges.com> and <choiceprivlage.com> domain names are adequate to establish distinctiveness between the disputed domain names and Complainant’s mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”); see also The Royal Bank of Scotland Grp. plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (“The Panel finds that merely by misspelling Complainants’ mark, Respondent has not sufficiently differentiated the <privelage.com> domain name from the PRIVILEGE mark under Policy ¶ 4(a)(i).”); see also Bond & Co. Jewelers, Inc., supra. Therefore, the Panel finds, pursuant to Policy ¶ 4(a)(i), that Respondent’s <choiceprivildges.com> and <choiceprivlage.com> domain names are confusingly similar to Complainant’s CHOICE PRIVILEGES mark.
Complainant asserts that Respondent’s <comfortinnlandoverhills.com> domain name is confusingly similar to Complainant’s COMFORT INN mark. The disputed domain name removes the space between the terms of Complainant’s mark, adds the geographic terms “overland hills,” and adds the gTLD “.com.” The Panel finds such alterations insufficient to distinguish the disputed domain names from the mark. See Gannett Co. v. Chan, D2004-0117 (WIPO Apr. 8, 2004) (“…it is well established that a domain name consisting of a well-known mark, combined with a geographically descriptive term or phrase, is confusingly similar to the mark.”); see also Bond & Co. Jewelers, Inc., supra. Therefore, the Panel finds, pursuant to Policy ¶ 4(a)(i), that Respondent’s comfortinnlandoverhills.com> domain name is confusingly similar to Complainant’s COMFORT INN mark.
Complainant asserts that Respondent’s <comfortinsuites.com> domain name is confusingly similar to Complainant’s COMFORT INN & SUITES mark. The disputed domain name removes the spaces, the letter “n,” and the ampersand from Complainant’s mark while adding the gTLD “.com.” The Panel finds that the removal of a letter and the ampersand do not create distinction in the disputed domain name for the purposes of Policy ¶ 4(a)(i). See Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002) (finding that the domain name <compq.com> is confusingly similar to the complainant’s COMPAQ mark because the omission of the letter “a” in the domain name does not significantly change the overall impression of the mark); see also McKinsey Holdings, Inc. v. Indidom, D2000-1616 (WIPO Jan. 31, 2001) (finding that the removal of the ampersand from “McKinsey & Company” does not affect the user’s understanding of the domain name, and therefore the domain name <mckinseycompany.com> is identical and/or confusingly similar to the mark “McKinsey & Company”). Additionally, as established above, the removal of spaces and the addition of a gTLD do not properly distinguish the disputed domain name from the mark. See Bond & Co. Jewelers, Inc., supra. Therefore, the Panel finds, pursuant to Policy ¶ 4(a)(i), that Respondent’s <comfortinsuites.com> domain name is confusingly similar to Complainant’s COMFORT INN & SUITES mark.
Complainant asserts that Respondent’s <econolodgeniagara.com> and <econolodgestreetsboro.com> domain names are confusingly similar to Complainant’s ECONO LODGE mark. The disputed domain names remove the space between the terms of Complainant’s mark, add the geographic terms “niagara” and “streetsboro,” and add the gTLD “.com.” The Panel finds these alterations are not sufficient to avoid a finding of confusing similarity. See Gannett Co., supra; see also Bond & Co. Jewelers, Inc., supra. Therefore, the Panel finds, pursuant to Policy ¶ 4(a)(i), that Respondent’s <econolodgeniagara.com> and <econolodgestreetsboro.com> domain names are confusingly similar to Complainant’s ECONO LODGE mark.
Complainant asserts that Respondent’s <qualityinnatlanticcity.com> domain name is confusingly similar to Complainant’s QUALITY INN mark. The disputed domain name again removes the space between the terms of the mark and adds the geographic terms “atlantic city” along with the gTLD “.com.” The Panel finds that the disputed domain names are not rendered distinct by these minor alterations. See Gannett Co., supra; see also Bond & Co. Jewelers, Inc., supra. Therefore, the Panel finds, pursuant to Policy ¶ 4(a)(i), that Respondent’s <qualityinnatlanticcity.com> domain name is confusingly similar to Complainant’s QUALITY INN mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Pursuant to the requirements of Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case in support of its allegations that Respondent lacks rights and legitimate interests in the disputed domain names. Once Complainant has established a prima facie case, the burden of proof shifts to Respondent to establish that it does have rights or legitimate interests in the disputed domain names. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Panel finds that Complainant has established a prima facie case. The Panel notes that Respondent has defaulted in this case, and as such has failed to uphold its burden of proof. The Panel finds that Respondent’s failure to respond makes it hard to imagine that Respondent has any rights or legitimate interests in the disputed domain names. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name). Nonetheless, the Panel will review the record in its entirety to make a determination as to Respondent’s rights or legitimate interests in the disputed domain names, if any, under the Policy ¶ 4(c) factors.
Complainant argues that nothing in the WHOIS information for the disputed domain names indicates that Respondent is commonly known by any of the disputed domain names. Additionally, Complainant asserts that Respondent is not now, and has never been, licensed or authorized by Complainant to use its CHOICE HOTELS, CHOICE PRIVILEGES, COMFORT INN, COMFORT INN & SUITES, ECONO LODGE, or QUALITY INN marks, or to register or use any domain names incorporating those marks. The Panel therefore finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. 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 disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant contends that Respondent’s <choicehotelsw.com>, <choiceprivildges.com>, <choiceprivlage.com>, <comfortinnlandoverhills.com>, <comfortinsuites.com>, <econolodgeniagara.com>, <icchoicehotels.com>, and <qualityinnatlanticcity.com> domain names currently resolve to pay-per-click websites featuring links to competing hotel reservation services. Respondent’s <econolodgestreetsboro.com> domain name previously resolved to a similar pay-per-click site. Complainant presumes that Respondent receives compensation in the form of click-through fees each time an Internet users clicks on one of the displayed links. The Panel finds that Respondent’s use of the disputed domain names to display links to directly competing hotel service providers is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent was not using the <tesco-finance.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by maintaining a web page with misleading links to the complainant’s competitors in the financial services industry); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Complainant contends that Respondent’s <econolodgestreetsboro.com> currently resolves to an inactive website. The Panel finds that Respondent’s failure to make an active use of the disputed domain name is additional evidence that Respondent lacks rights and legitimate interests in the disputed domain name. See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Respondent’s failure to associate content with its disputed domain name evinces a lack of rights and legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
Complainant avers that the WHOIS records for the <comfortinnlandoverhills.com>, <econolodgeniagara.com>, and <econolodgestreetsboro.com> domain names indicate that Respondent is offering these domain names for sale. The Panel finds that Respondent’s general offer to sell the disputed domain name supports the conclusion that Respondent lacks rights and legitimate interests in the <comfortinnlandoverhills.com>, <econolodgeniagara.com>, and <econolodgestreetsboro.com> domain names under Policy ¶ 4(a)(ii). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)); see also Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights or legitimate interests where the respondent registered the domain name with the intention of selling its rights).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that the WHOIS information for the <comfortinnlandoverhills.com>, <econolodgeniagara.com>, and <econolodgestreetsboro.com> domain names indicates that Respondent is offering those domain names for sale. The Panel finds that even a general offer to sell the disputed domain names, such as Respondent’s, can constitute bad faith registration and use under Policy ¶ 4(b)(i), even where no specific price is mentioned. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); see also Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”).
Complainant alleges that Respondent’s choicehotelsw.com>, <choiceprivildges.com>, <choiceprivlage.com>, <comfortinnlandoverhills.com>, <comfortinsuites.com>, <econolodgeniagara.com>, <icchoicehotels.com>, and <qualityinnatlanticcity.com> domain names currently resolve, and that Respondent’s <econolodgestreetsboro.com> previously resolved, to websites featuring links to competing third-parties in the hotel reservation services industry. Respondent likely receives click-through fees based on the displayed links. The Panel finds there to be sufficient evidence that Respondent demonstrated bad faith registration and use under Policy ¶ 4(b)(iii) based on its attempted disruption of Complainant’s business. See David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business); see also Am. Online, Inc. v. Tapia, FA 328159 (Nat. Arb. Forum Dec. 1, 2004) (“Respondent is referring Internet traffic that seeks out the <aol.tv> domain name to a competitor’s news site. The Panel strongly finds that appropriating Complainant’s mark to refer customers seeking Complainant to Complainant’s competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Respondent’s hoicehotelsw.com>, <choiceprivildges.com>, <choiceprivlage.com>, <comfortinnlandoverhills.com>, <comfortinsuites.com>, <econolodgeniagara.com>, <icchoicehotels.com>, and <qualityinnatlanticcity.com> domain names resolve to websites featuring pay-per-click links to competitors in the hotel reservation services industry. Additionally, Respondent’s <econolodgestreetsboro.com> domain name previously resolved to a website of a similar nature. The Panel agrees with Complainant’s assumption that Respondent likely receives click-through fees based on the displayed third-party links. Therefore, the Panel finds that Respondent both registered and used the disputed domain names in order to intentionally attract Internet users to its website, and competing links, by creating a likelihood of confusion as to Complainant’s association or sponsorship of the disputed domain names and resolving websites. As the Panel has determined that this was done for the purpose of receiving commercial gain by way of click-through fees, the Panel supports a finding of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name).
Respondent’s <econolodgestreetsboro.com> domain name currently resolves to an inactive website. The Panel finds that Respondent’s failure to make an active use of the disputed domain name is evidence of Respondent’s bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <choicehotelsw.com>, <choiceprivildges.com>, <choiceprivlage.com>, <comfortinnlandoverhills.com>, <comfortinsuites.com>, <econolodgeniagara.com>, <econolodgestreetsboro.com>, <icchoicehotels.com>, and <qualityinnatlanticcity.com> domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: February 10, 2011
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