Radisson
Hotels International, Inc. v. Raddison Suites
Claim Number: FA0107000098235
PARTIES
Complainant is Radisson Hotels International, Inc., Minneapolis, MN (“Complainant”) represented by Gregory Golla, of Merchant & Gould. Respondent is Raddison Suites, Georgetown, Guyana (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <raddisonguyana.com>, registered with Bulkregister.com.
PANEL
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.
Judge Harold Kalina (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on July 19, 2001; the Forum received a hard copy of the Complaint on July 20, 2001.
On July 25, 2001, Bulkregister.com confirmed by e-mail to the Forum that the domain name <raddisonguyana.com> is registered with Bulkregister.com and that Respondent is the current registrant of the name. Bulkregister.com has verified that Respondent is bound by the Bulkregister.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 26, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 15, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@raddisonguyana.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On August 20, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Harold Kalina (Ret.) 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.” 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends that the <raddisonguyana.com> domain name is confusingly similar to its RADISSON mark, that Respondent has no rights nor legitimate interests in the <raddisonguyana.com> domain name, and that Respondent registered and is using the disputed domain name in bad faith.
B. Respondent
No response was received.
FINDINGS
1. Complainant operates hotels worldwide.
2. Complainant has been using its RADISSON trademark in connection with its hotel services since as early as 1909.
3. Complainant owns numerous government registrations for its RADISSON mark worldwide including in Guyana, where Respondent is located.
4.
Respondent registered the <raddisonguyana.com> domain name on April 25, 2001.
5.
Complainant's use of the RADISSON mark as well as its
government registrations predate Respondent's registration of the <raddisonguyana.com> domain name.
6.
Respondent uses the <raddisonguyana.com>
domain name to resolve to a webpage that promotes a competing hotel in Guyana.
DISCUSSION
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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Identical and/or
Confusingly Similar
Complainant has established its rights to the RADISSON mark through its extensive trademark registrations in the United States and internationally, including Guyana, where Respondent is located. The <raddisonguyana.com> domain name is a combination of a misspelling of Complainant's RADISSON mark and a geographic identifier; adding an extra "d," deleting an "s," and adding the name of a country ("Guyana," the location of Respondent's hotel) do not prevent the <raddisonguyana.com> domain name from being confusingly similar. E.g., Victoria’s Secret et al. v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that misspelling words and adding letters on to words does not create a distinct mark but is nevertheless confusingly similar with the Complainant’s marks); see, e.g., VeriSign, Inc. v. Tandon, D2000-1216 (WIPO Nov. 16, 2000) (finding confusing similarity between the Complainant’s VERISIGN mark and the <verisignindia.com> and <verisignindia.net> domain names where Respondent added the word “India” to Complainant’s mark); see also Net2phone Inc, v. Netcall SAGL, D2000-0666 (WIPO Sept. 26, 2000) (finding that the respondent’s registration of the domain name <net2phone-europe.com> is confusingly similar to complainant’s mark).
Additionally, the Panel finds that the <raddisonguyana.com> domain name is so confusingly similar to Complainant's world-renowned mark, that a reasonable Internet user would assume that the domain name is somehow affiliated with Complainant. See Treeforms, Inc. v. Cayne Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that confusion would result when Internet users, intending to access Complainant’s web site, think that an affiliation of some sort exists between the Complainant and the Respondent, when in fact, no such relationship would exist).
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Rights or
Legitimate Interests
Complainant asserts that Respondent has no rights or legitimate interests in the <raddisonguyana.com> domain name. Respondent did not respond to Complainant's assertion and so the Panel is permitted to accept Complainant's allegations as true. See, e.g., Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).
Respondent uses the <raddisonguyana.com> domain name to promote its own hotel in Guyana in direct competition with Complainant's business. Such a use does not amount to a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i). See The Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that Respondent’s use of the disputed domain names to sell competing goods was an illegitimate use and not a bona fide offering of goods); see also America Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that “it would be unconscionable to find a bona fide offering of services in a respondent’s operation of web-site using a domain name which is confusingly similar to the complainant’s mark and for the same business”).
Moreover, Respondent's use of the <raddisonguyana.com> domain name in the face of Complainant's RADISSON mark demonstrate an intent to misleadingly divert consumers away from Complainant and to Respondent. This type of conduct is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). E.g., Kosmea Pty Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark).
Respondent does not come forward to
demonstrate it has been commonly known by the <raddisonguyana.com> domain name. While the initial burden of
proof is on the Complainant, Policy ¶ 4(c) advises a Respondent how to
demonstrate its rights to and legitimate interests in a domain name. The paragraph sets out a non-exclusive list
of circumstances which will establish the relevant rights and/or legitimate
interests of the Respondent. Respondent has not responded to Complainant’s
allegations. Therefore, the Panel
concludes Respondent has not met its burden under Policy ¶ 4(c)(ii). See See
America Online, Inc. v. AOL Int'l,
D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests
where Respondent fails to respond); see
also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By
not submitting a response, Respondent has failed to invoke any circumstance
which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or
legitimate interests in the domain name”).
For all of the forgoing reasons, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and
Use in Bad Faith
Given the international fame of Complainant's RADISSON mark, Respondent registration of a domain name so confusingly similar suggests bad faith registration and use in a number of ways. First, it is likely Respondent registered the <raddisonguyana.com> domain name with the intention to disrupt the business of a competitor, constituting bad faith under Policy ¶ 4(b)(iii). E.g., Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business); see also Surface Protection Indus., Inc. v. The Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that given the competitive relationship between Complainant and Respondent, Respondent likely registered the contested domain name with the intent to disrupt Complainant's business and create user confusion).
Moreover,
Respondent use of the <raddisonguyana.com>
domain name to offer services in direct competition with Complainant suggests
that Respondent is intentionally attempting to attract, for commercial gain,
users to its website by creating a likelihood of confusion with Complainant's
RADISSON mark as to the source, sponsorship, affiliation, or endorsement of
Respondent's services. Such conduct is
evidence of bad faith use pursuant to Policy ¶ 4(b)(iv). See Identigene,
Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith
where Respondent's use of the domain name at issue to resolve to a website
where similar services are offered to Internet users is likely to confuse the
user into believing that Complainant is the source of or is sponsoring the
services offered at the site); cf. The
State Bar of Cal. v. eWebNation.com, Inc., FA 97137 (Nat. Arb. Forum June 14, 2001) (given that Respondent is an
attorney and was well aware of Complainant and its rights before establishing
its own website, an inference can be made that the Respondent sought to trade
on confusion with the California State Bar and exploit its reputation and
stature).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three elements under the ICANN Policy, the Panel concludes that the requested relief should be granted.
Accordingly, it is Ordered that the <raddisonguyana.com> domain name be transferred from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: August 27, 2001
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