national
arbitration forum
DECISION
Choice Hotels International, Inc. v. Piri Jaroubek
Claim Number: FA0907001273206
PARTIES
Complainant is Choice Hotels International, Inc. (“Complainant”), represented by Halle
B. Markus, of Arent Fox LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <comforthotels.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.
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.
Louis E. Condon as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 9, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 10, 2009.
On July 11, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicd confirmed by e-mail to the National Arbitration Forum that the <comforthotels.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicd has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicd 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
17, 2009, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
August 6, 2009
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@comforthotels.com by
e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 10, 2009, 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." 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A. Complainant makes the following assertions:
1. Respondent’s <comforthotels.com> domain name is confusingly similar to Complainant’s COMFORT HOTEL mark.
2. Respondent does not have any rights or legitimate interests in the <comforthotels.com> domain name.
3. Respondent registered and used the <comforthotels.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant operates in the hotel services industry, and promotes its services under the COMFORT HOTEL mark, which Complainant registered with the United States Patent and Trademark Office (“USPTO”) on September 1, 1992 (Reg. No. 1,712,481). Complainant is one of the world’s largest lodging franchisors, with over 5,000 hotels in countries and territories throughout the world.
Respondent registered the <comforthotels.com> domain name on August 4, 2006. The disputed domain name resolves to a website that contains links to third-party websites that offer services in the same industry as Complainant.
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 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.
Identical and/or Confusingly Similar
The Panel finds that Complainant has established rights in
the COMFORT HOTEL mark for purposes of Policy ¶ 4(a)(i)
through its trademark registration with the USPTO. See
Koninklijke KPN N.V. v. Telepathy Inc.,
D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that
the mark be registered in the country in which the respondent operates;
therefore it is sufficient that the complainant can demonstrate a mark in some
jurisdiction); see also
Complainant argues that
Respondent’s <comforthotels.com>
domain name is confusingly similar to Complainant’s COMFORT HOTEL mark pursuant
to Policy ¶ 4(a)(i).
Respondent’s disputed domain name contains Complainant’s mark in its
entirety, with only the space between the terms removed, the letter “s” added
to the end of the mark, and the generic top-level domain (“gTLD”) “.com” added
to the end of the mark. The Panel finds
that removing a space from a mark does not distinguish a domain name from that
mark in any way, because no domain name can contain a space. See
Bond & Co. Jewelers, Inc. v.
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Rights or Legitimate Interests
Complainant asserts that Respondent lacks all rights and legitimate interests in the <comforthotels.com> domain name. If Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that rights and legitimate interests exist pursuant to Policy ¶ 4(a)(ii). The Panel finds that Complainant has established a prima facie case. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“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.”).
Complainant contends that Respondent is neither commonly
known by, nor licensed to register, the disputed
domain name. Respondent’s WHOIS
information identifies Respondent as “Piri
Jaroubek.” Therefore, the Panel finds that Respondent
lacks rights and legitimate interests in the disputed domain name pursuant to
Policy ¶ 4(c)(ii).
See M. Shanken
Commc’ns v. WORLDTRAVELERSONLINE.COM,
FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent
was not commonly known by the <cigaraficionada.com> domain name under
Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the
record); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding
that the respondent was not commonly known by the <coppertown.com> domain
name where there was no evidence in the record, including the WHOIS
information, suggesting that the respondent was commonly known by the disputed
domain name).
Respondent is using the <comforthotels.com>
domain name to display links to third-party websites that are in competition
with Complainant. The Panel infers that
Respondent is using the disputed domain name to earn click-through fees, and
thus finds that Respondent has not made 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). See Wells Fargo & Co. v. Lin
Shun Shing, FA 205699 (Nat. Arb. Forum
Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a
website featuring pop-up advertisements and links to various third-party
websites is neither a bona fide offering of goods or services under
Policy ¶ 4(c)(i) nor a legitimate noncommercial or
fair use under Policy ¶ 4(c)(iii) because the registrant presumably receives
compensation for each misdirected Internet user); see also Expedia, Inc. v.
Compaid, FA
520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of
the <expediate.com> domain name to redirect Internet users to a website featuring
links to travel services that competed with the complainant was 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
The Panel finds that Respondent’s use of the <comforthotels.com> domain name to disrupt the business of Complainant by offering links to competitors is further evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent is using the <comforthotels.com> domain name to intentionally divert Internet
users to the associated website, which displays third-party links to competing
websites. Complainant contends that
Respondent is collecting click-through fees, thus attempting to profit by
creating a likelihood of confusion between Complainant’s mark and the disputed
domain name. The Panel finds that
Respondent’s use of the disputed domain name is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum
June 7, 2006) (holding that the registration and use of a domain name
confusingly similar to a complainant’s mark to direct Internet traffic to a
commercial “links page” in order to profit from click-through fees or other
revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Maricopa
Cmty. Coll. Dist. v. College.com, LLC, FA 536190 (Nat. Arb. Forum Sept. 22, 2005) (“The
Panel infers that Respondent receives click-through fees for diverting Internet
users to a competing website. Because
Respondent’s domain name is identical to Complainant’s
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied
DECISION
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 <comforthotels.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: August 24, 2009
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