Radisson Hotels International, Inc. v. 1 1 / 1
Claim Number: FA1311001528416
Complainant is Radisson Hotels International, Inc. (“Complainant”), represented by Elizabeth C. Buckingham of Dorsey & Whitney LLP, Minnesota, USA. Respondent is 1 1 / 1, California, USA F/K/A Bladimar Boyiko, Moscow, Russia. (“Respondent”)
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwradisson.com>, registered with ENOM, INC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 5, 2013; the National Arbitration Forum received payment on November 6, 2013.
On November 6, 2013, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <wwwradisson.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, INC. 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 November 11, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 2, 2013 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@wwwradisson.com. Also on November 11, 2013, 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 December 5, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant provides hotel services under its RADISSON mark.
Complainant has registered the RADISSON mark with the United States Patent and Trademark Office ("USPTO") as well as with other trademark authorities worldwide including Russia and The European Union.
Respondent’s <wwwradisson.com> domain name is confusingly similar to the RADISSON mark. Respondent merely tags on the generic top-level domain “.com” and the prefix “www” in forming this domain name. Neither alteration is relevant.
Respondent is not known by the <wwwradisson.com> domain name. Respondent lists itself as “1 1 / 1” in the WHOIS information, and earlier on the registrant was listed as “Bladimir Boyiko.”
Respondent used the <wwwradisson.com> domain name primarily for purposes of hosting hyperlink advertisements to competing and unrelated businesses.
Respondent has, since the start of this proceeding, attempted to mask its conduct by setting the <wwwradisson.com> domain name’s resolving page to be Complainant’s own <radisson.com> domain name.
Respondent’s bad faith is evident through a pattern of bad faith registrations. Prior to “cyberflying” to the “1 1 / 1” identity currently listed in the domain name’s WHOIS information, the listed registrant was the renowned cybersquatter “Bladimir Boyiko.”
Respondent sought to profit from commercial advertising revenue by shuttling Internet users who visited the <wwwradisson.com> domain name (in the belief that the domain name was associated with Complainant) to competing and rival hotel businesses.
Respondent registered the domain name with full knowledge of the RADISSON mark. Respondent illustrates this by having the <wwwradisson.com> domain name resolve to Complainant’s own <raddison.com> domain name wherein the RADISSON mark appears explicitly.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark registrations with the USPTO for the RADISSON mark.
Complainant acquired rights in its RADISSON mark prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark in any capacity.
The at-issue domain name addressed a website that displayed links to both competing and unrelated hyperlink advertisements. The domain name was later redirected to Complainant’s website located at <radisson.com>.
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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant has rights in the RADISSON mark pursuant to Policy ¶ 4(a)(i) by virtue of its owning national trademark registration for RADISSON. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)).
In forming the at-issue domain name Respondent prefixes Complainant’s entire trademark with “www”. However even after doing so the resulting domain name is nonetheless undeniably reminiscent of Complainant’s mark. Therefore, the Panel concludes that Respondent’s <wwwradisson.com> domain name is confusingly similar to Complainant’s RADISSON mark pursuant to Policy ¶ 4(a)(i). See Register.com Inc. v. House, FA 167970 (Nat. Arb. Forum Aug. 22, 2003) (finding that adding the prefix “www” to a domain name without separating it from the mark by a period does not negate a finding of confusing similarity).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with affirmative evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and as discussed below there is no evidence supporting any finding pursuant to Policy 4(c) suggesting that Respondent has rights in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
The WHOIS information for the at-issue domain name identifies Respondent as “1 1 / 1.” Earlier WHOIS information suggests the Respondent/Registrant is “Bladimir Boyiko.” The record before the Panel contains no evidence that might otherwise tend to prove that Respondent is nevertheless commonly known by the at-issue domain name despite the contrary WHOIS information. The Panel therefore finds that Respondent is not commonly known by the <wwwradisson.com> domain name for the purposes of Policy ¶ 4(c)(ii). See 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).
The at-issue domain name originally resolved to a hyperlink directory displaying various competing and unrelated advertisement links to third-party websites. Respondent’s use of the at-issue domain name is therefore neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (finding that hyperlink listings on a confusingly similar domain name constitute neither Policy ¶ 4(c)(i) bona fide offerings of goods or services, nor Policy ¶ 4(c)(iii) legitimate noncommercial or fair uses).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of each of the at-issue domain names pursuant to Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below Policy ¶4(b) bad faith circumstances are present and there is additional non-Policy ¶4(b) evidence from which the Panel may independently conclude that Respondent acted in bad faith pursuant to Policy ¶4(a)(iii).
Respondent’s use of the at-issue domain names to host links to Complainant’s competitors in the hotel industry is disruptive to Complainant’s business. Such use demonstrates Respondent’s bad faith registration and use of the at-issue domain names pursuant to Policy ¶ 4(b)(iii). See, United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii)”).
Next, the at-issue confusingly similar domain name is used in a manner that misleads Internet users as to the domain name’s sponsorship such that Respondent may commercially gain. The similarity of the domain names to Complainant’s trademark falsely conveys, to at least some Internet users, that Complainant authorizes, endorses, or sponsors the website addressed by the confusingly similar domain name. The confusion foresters added traffic to a website where Respondent may benefit via an increase in advertising click-through fees. Here, Respondent directed the <wwwradisson.com> domain name to address a hyperlink farm filled with both competing and unrelated hyperlink advertisements. Accordingly, Respondent’s behavior demonstrates its bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be misled to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website”).
Furthermore, Respondent registered the at-issue domain name with full knowledge of Complainant’s RADISSON mark. The Panel makes this conclusion from the notoriety of Complainant’s trademark and because the <wwwradisson.com> domain name now redirects to Complainant’s <radisson.com> domain name whereon Complainant’s RADISSON mark appears. See 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”).
Finally, Respondent is typosquatting. Typosquatting is a form of cybersquatting that relies on typographical errors made when Internet users mistype or misspell an Internet destination encompassing a trademark into a browser’s address bar, or into a search engine’s input field. The typosquatter expects that a significant number of mistyped addresses will match the form of mistake the typosquatter registered as a domain name and that thereby wayward visitors will inadvertently end up on a website controlled by the typosquatter. Once a visitor ends up on the typosquatter controlled website he or she may be exploited via pay-per-click links and/or otherwise. In designing the at-issue domain name Respondent removes the period, “.”, normally entered in the browser address bar between “www” and “radisson.com.” In so doing Respondent seeks to take advantage of Internet users who are intent on visiting Complainant’s <radisson.com> website but who, when typing Complainant’s likely URL, inadvertently omit the period after “www.” When an Internet user makes this mistake he or she lands on Respondent’s <wwwradisson.com> website or wherever Respondent decides to redirect the domain name. These circumstance further indicate Respondent’s bad faith under Policy ¶ 4(a)(iii). See Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the ‘www’ portion of [a] web-address,” and evidence that the domain name was registered and used in bad faith).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwradisson.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 9, 2013
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