B Hotel Group, LLC v. Pierre Honore
Claim Number: FA1406001564618
Complainant is B Hotel Group, LLC (“Complainant”), Florida. Respondent is Pierre Honore (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <b2hotelmiamidowntown.com>, registered with Fabulous.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 16, 2014; the National Arbitration Forum received payment on June 16, 2014.
On June 19, 2014, Fabulous.com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <b2hotelmiamidowntown.com> domain name is registered with Fabulous.com Pty Ltd and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd has verified that Respondent is bound by the Fabulous.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 June 19, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 9, 2014 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@b2hotelmiamidowntown.com. Also on June 19, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 18, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <b2hotelmiamidowntown.com> domain name, the domain name at issue, is confusingly similar to Complainant’s B2 mark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue.
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant’s B2 mark is used in connection with hotel and lodging services. The B2 mark is registered with the United States Patent and Trademark Office ("USPTO") (Reg. No. 4,247,240 registered Nov. 20, 2012). Respondent’s <b2hotelmiamidowntown.com> domain name merely adds the descriptive terms “hotel” in “miami downtown.” It is worth noting that Complainant’s B2 mark is represented in Complainant’s own <b2miamidowntown.com> domain name. The added terms all refer to a specific hotel run by Complainant under the B2 mark.
Respondent has no rights in the domain name. Respondent is not commonly known by the <b2hotelmiamidowntown.com> domain name, nor has Complainant approved of Respondent’s use of the B2 mark in Internet domain names. Respondent uses the <b2hotelmiamidowntown.com> domain name to send Internet users to website purporting to describe B2 hotel services without Complainant’s authority.
Respondent profits through a likelihood of confusion because it gives the impression that Internet users are visiting the legitimate website of Complainant when in reality each reservation made through this website costs Complainant a 20% commission fee per night booked.
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(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.”).
Complainant’s B2 mark is used in connection with hotel and lodging services. The B2 mark is registered with the USPTO (Reg. No. 4,247,240 registered Nov. 20, 2012). This USPTO registration provides adequate evidence of Policy ¶ 4(a)(i) rights in the B2 mark for purposes of this proceeding. See Amusement Art, LLC v. zarathustra james / bomit, FA 1536201 (Nat. Arb. Forum Jan. 29, 2014) (“The Panel observes that Respondent appears to reside and operate within the United States. Therefore, the Panel holds that Complainant’s registration of the MR BRAINWASH mark with the USPTO sufficiently establishes its rights in the mark pursuant to Policy ¶ 4(a)(i).”).
Respondent’s <b2hotelmiamidowntown.com> domain name merely adds the descriptive terms “hotel” in “miami downtown.” It is worth noting that Complainant’s B2 mark is represented in Complainant’s own <b2miamidowntown.com> domain name. The added terms all refer to a specific hotel run by Complainant under the B2 mark and thus cannot avoid confusing similarity. See, e.g., MGM Resorts Int’l v. Ronald Krupinski / Named Domains, FA 1537377 (Nat. Arb. Forum Jan. 31, 2014) (holding that the removal of a mark’s punctuation/spacing, the addition of a gTLD, and the introduction of a descriptive term created confusing similarity between the <mgmgrandcasino.net> domain name and Complainant’s MGM GRAND mark). As in the above MGM Resorts Int’l, the Panel also finds the generic top-level domain “.com” to be irrelevant. Therefore, there is Policy ¶ 4(a)(i) confusing similarity.
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. 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 UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Respondent is not commonly known by the <b2hotelmiamidowntown.com> domain name, nor has Complainant approved of Respondent’s use of the B2 mark in Internet domain names. The Panel notes that “Pierre Honore” is the registrant of record for this domain name. Here, there is no basis for a finding under Policy ¶ 4(c)(ii) because there is absolutely no evidence connecting Respondent with the domain name. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Respondent uses the <b2hotelmiamidowntown.com> domain name to send Internet users to a website purporting to describe B2 hotel services without Complainant’s authority. The domain name’s website apparently promotes the booking of hotel rooms at B2 facilities. The Panel finds that Respondent’s unauthorized booking of hotels under a confusingly similar domain name is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See, e.g., Caterpillar Inc. v. Huth, FA 169056 (Nat. Arb. Forum Sept. 2, 2003) (“Respondent lacks rights in the disputed domain names because Respondent competes with Complainant by selling Complainant's used parts without a license from Complainant to do so.”).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent profits through a likelihood of confusion because it gives the impression that Internet users are visiting the legitimate website of Complainant when in reality each reservation made through this website costs Complainant a 20% commission fee per night booked. The Panel notse the domain name’s website apparently promotes the booking of hotel rooms at B2 facilities. Respondent’s attempts to secure revenues and commission fees through this use of the confusingly similar <b2hotelmiamidowntown.com> domain name are evidence of an Policy ¶ 4(b)(iv) intent to profit through likelihood of confusion. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <b2hotelmiamidowntown.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: August 1, 2014
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