Thor Equities, LLC v. andreas meinhold / Xenois Hospitality llc
Claim Number: FA1602001659721
Complainant is Thor Equities, LLC (“Complainant”), represented by Theodore R. Remaklus of Wood, Herron & Evans, LLP, Ohio, USA. Respondent is andreas meinhold / Xenois Hospitality llc (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thorhospitality.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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 5, 2016; the Forum received payment on February 5, 2016.
On February 5, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <thorhospitality.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 February 8, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 29, 2016 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@thorhospitality.com. Also on February 8, 2016, 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 March 4, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant uses the THOR mark in connection with its business developing, leasing, and managing commercial, residential, retail, hotel, and mixed-used properties. Complainant has registered the THOR mark with the likes of the European Union’s Office For Harmonization in the Internal Market (“OHIM”) (e.g., Reg. No. 011,583,028, registered July 7, 2013), demonstrating rights in the mark. Respondent’s <thorhospitality.com> domain name is confusingly similar to the THOR mark as the domain incorporates the mark entirely while adding the descriptive term “hospitality,” as well as appending the generic top-level domain (“gTLD”) “.com.”
ii) Respondent has no rights or legitimate interests in the <thorhospitality.com> domain name. Respondent is not commonly known by the disputed domain name nor has Respondent been authorized by Complainant to register any variant of THOR in a domain name per Policy ¶ 4(c)(ii). Further, Respondent is not making a bona fide offering of goods or services via the disputed domain name, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii), respectively. Instead, the disputed domain name resolves to an inactively held website.
iii) Respondent had actual and/or constructive knowledge with regards to the THOR mark and Complainant’s rights in the mark, and has inactively held the disputed domain name, demonstrating Policy ¶ 4(a)(iii) bad faith.
B. Respondent
Respondent has not submitted a Response to the Complaint. The Panel notes that the <thorhospitality.com> domain name was registered on November 28, 2015.
Complainant established that it had rights in the mark contained in the disputed domain name. Disputed domain name is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name 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 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 uses the THOR mark in connection with its business developing, leasing, and managing commercial, residential, retail, hotel, and mixed-used properties. Complainant alleges it has rights in the THOR mark through its registration with OHIM (e.g., Reg. No. 011,583,028, registered July 7, 2013). Previous panels have found registration with the OHIM sufficient to establish a complainants rights in a mark under Policy ¶ 4(a)(i), even when Respondent does not operate within the European Union. See Petroleo Brasileiro S.A. – Petrobras v. Munoz, FA 1222428 (Nat. Arb. Forum Oct. 16, 2008) (finding complainant’s multiple trademark registrations around the world, including those with the European Union’s Office for Harmonization in the Internal Market (“OHIM”), established complainant’s rights in its mark under Policy ¶ 4(a)(i)); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the complainant has rights to the name when the mark is registered in a country even if the complainant has never traded in that country). Accordingly, the Panel finds that Complainant has rights in the THOR mark under Policy ¶ 4(a)(i).
Complainant alleges that Respondent’s <thorhospitality.com> is confusingly similar to the THOR mark because it entirely contains the mark, and adds only the term “hospitality” and the gTLD “.com.” Complainant argues that because it uses the THOR mark in relation to property management in the hospitality industry, the additional term is descriptive of its business, and, that, therefore the domain name is confusingly similar to the THOR mark. Past panels have agreed with this argument in similar circumstances. See Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”). Therefore, the Panel finds that Respondent’s <thorhospitality.com> domain name is confusingly similar to Complainant’s THOR mark pursuant to Policy ¶ 4(a)(i).
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.”).
Complainant alleges that Respondent is not commonly known by the <thorhospitality.com> domain name because it is not indicated in the WHOIS to be so. The Panel notes that the WHOIS information lists “andreas meinhold / Xenois Hospitality llc” as Registrant and that Respondent has failed to provide further evidence to indicate being commonly known by the domain name. Past panels have found such a lack of evidence sufficient to show that a respondent is not commonly known by a domain name under Policy ¶ 4(c)(ii). See 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). As such, the Panel finds that Respondent is not commonly known by the <thorhospitality.com> domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent is not making a bona fide offering of goods or services via the disputed domain name, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii), respectively. Instead, the disputed domain name purportedly resolves to a page which merely displays the message, “Maintenance Mode.” Similarly, the panel in Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Nat. Arb. Forum Sept. 2, 2004) stated, “Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).” In light of Respondent’s failure to make use of the disputed domain name and the available precedent, the Panel agrees that Respondent is not making an offering which would satisfy Policy ¶¶ 4(c)(i) or (iii).
Complainant argues that Respondent registered and is using the disputed domain name in bad faith. Complainant’s Policy ¶ 4(a)(iii) arguments fall primarily outside of the perimeter of Policy ¶ 4(b), however, the Panel notes that it may still find bad faith in regards to solely Policy ¶ 4(a)(iii) arguments. See Channel Tunnel Group Ltd. v. Powell, D2000-0038 (WIPO Mar. 17, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in [¶ 4(b)] of the Policy, is not conclusive that the [<euro-tunnel.com>] domain name in issue was registered in and is being used in bad faith.”). Thus, the Panel finds bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant maintains that Respondent has not made an active use of the disputed domain name and has made no demonstrable preparations to use it. Previous panels have found evidence of bad faith where the respondent does not make an active use of the disputed domain name. See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith). In the absence of Respondent's rebuttal to Complainant's allegations on the widespread use of Complainant's mark, the Panel finds that Respondent has not made an active use of the disputed domain name and it constitutes evidence of bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant alleges that Respondent must have had constructive and/or actual notice of Complainant's rights in the THOR mark prior to registration of the domain names because of Complainant's widespread use of the mark and its trademark registrations with the OIMH. While constructive notice is generally regarded as insufficient to support a finding of bad faith, the Panel here infers due to Complainant's widespread use of the mark, inactive use of the disputed domain name for a longer period of time and the absence of Respondent's rebuttal to Complainant's argument that Respondent had actual notice of Complainant's mark and thus registered the disputed domain names in bad faith under Policy ¶ 4(a)(iii). See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Nat. Arb. Forum Apr. 10, 2006) (stating that while mere constructive knowledge is insufficient to support a finding of bad faith, where the circumstances indicate that the respondent had actual knowledge of the complainant's mark when it registered the domain name, panels can find bad faith); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <thorhospitality.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: March 11, 2016
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