G6 Hospitality IP, LLC, parent company of Motel 6 Operating L.P. v. Ryan G Foo / PPA Media Services
Claim Number: FA1501001599700
Complainant is G6 Hospitality IP, LLC, parent company of Motel 6 Operating L.P. (“Complainant”), Texas, United States. Respondent is Ryan G Foo / PPA Media Services (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hotel6.com>, registered with Internet.Bs Corp.
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.
David A. Einhorn as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 13, 2015; the National Arbitration Forum received payment on January 15, 2015.
On January 22, 2015, Internet.Bs Corp. confirmed by e-mail to the National Arbitration Forum that the <hotel6.com> domain name is registered with Internet.Bs Corp. and that Respondent is the current registrant of the name. Internet.Bs Corp. has verified that Respondent is bound by the Internet.Bs Corp. 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 January 27, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 17, 2015 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@hotel6.com. Also on January 27, 2015, 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 February 23, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn 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’s Contentions
i. Complainant owns the MOTEL 6 mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 822,563, registered Jan. 17, 1967).
ii. Complainant uses the mark in connection with its lodging hotel chain with locations throughout the United States and Canada.
iii. Complainant has exerted significant effort in advertising and promoting the MOTEL 6 mark such that it has garnered significant recognition and consumer appeal.
iv. Complainant’s online operation is directed through the <motel6.com> domain name.
i. Policy ¶ 4(a)(i)
1. The <hotel6.com> domain name is nearly identical and confusingly similar to the MOTEL 6 mark.
2. The <hotel6.com> domain name is an example of “typosquatting.”
ii. Policy ¶ 4(a)(ii)
1. Respondent has not been commonly known by the disputed domain name. Further, Respondent is not sponsored by or legitimately affiliated with Complainant in any way.
2. Respondent is not using the disputed domain name to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Respondent uses the disputed domain name to redirect Internet users to Complainant’s own website in violation of Complainant’s affiliate program, a violation of the affiliate agreement between Complainant and Respondent.
iii. Policy ¶ 4(a)(iii)
1. As a member of Complainant’s affiliate program, Respondent was aware of Complainant’s rights in the MOTEL 6 mark when registering the <hotel6.com> domain name.
2. Respondent is a serial cybersquatter / typosquatter, and demonstrates a pattern of bad faith registration and use of domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the domain name was registered June 1, 2000.
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 uses the MOTEL 6 mark in connection with its lodging hotel chain. Complainant urges that it has exerted significant effort in advertising and promoting the MOTEL 6 mark such that it has garnered significant recognition and consumer appeal. Further, Complainant’s online operation is directed through the <motel6.com> domain name. Complainant asserts ownership of the MOTEL 6 mark through its trademark registration with the USPTO (e.g. Reg. No. 1,816,233, registered Jan. 11, 1994). While the WHOIS record indicates Respondent operates out of the Bahamas, prior panels have found USPTO registrations sufficient to demonstrate a complainant’s rights despite the respondent’s purported residence outside of the United States. Accordingly, Complainant has satisfied the initial requirements of Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Complainant argues the <hotel6.com> domain name is confusingly similar to the MOTEL 6 mark. Complainant notes that the disputed domain name differs from the mark by the substitution of a single letter, namely, changing the “m” to an “h.” The Panel concludes that this minor alteration does not sufficiently distinguish the disputed domain name from the mark in sound or in meaning, and therefore, finds confusing similarity under Policy ¶ 4(a)(i).
In arguing that Respondent lacks rights and legitimate interests in the disputed domain name, Complainant urges that Respondent has not been commonly known by the disputed domain name. Further, Complainant contends that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. The Panel notes that Respondent did not submit a response in this matter and therefore has failed to confront these contentions. The Panel also notes that the WHOIS record indicates that “Ryan G Foo” of “PPA Media Services” is the registrant of record. In light of the available evidence, the Panel finds that Respondent is not commonly known by the <hotel6.com> domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Complainant further contends that Respondent is not using the <hotel6.com> domain name to provide 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). Complainant contends that Respondent uses the disputed domain name to redirect Internet users to Complainant’s own website in violation of the affiliate agreement between Complainant and Respondent. The Panel notes that Complainant provided evidence of the alleged affiliate agreement governing this relationship in response to an interlocutory order. In Sports Auth. Mich., Inc. v. Domhold Co., FA 135011 (Nat. Arb. Forum Jan. 9, 2003), it was found that registering a domain name which differs by one letter from the complainant’s commercial website, and using that domain name to redirect Internet consumers to the complainant’s website as a part of the complainant’s affiliates program is not a bona fide offering of goods or services nor a noncommercial use of the domain name. As such, the Panel determines that Respondent’s use of the disputed domain name amounts to neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant accuses Respondent of serial cybersquatting/typosquatting. See e.g., Arrowhead Central Credit Union v. Ryan G Foo / PPA Media Services, FA 1591655 (Nat. Arb. Forum Jan. 2, 2015); National Geographic Society v. Ryan G Foo / PPA Media Services, FA 1591516 (Nat. Arb. Forum Jan. 2, 2015); Chegg, Inc. v. Ryan G Foo / PPA Media Services, FA 1588909 (Nat. Arb. Forum Dec. 30, 2014). The Panel agrees that Respondent’s history and pattern of bad faith behavior is indicative of bad faith in the case at hand. See Bullock v. Network Operations Ctr., FA 1269834 (Nat. Arb. Forum Aug. 10, 2009) (“Complainant contends that Respondent has a longstanding history of cybersquatting . . . . The Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(ii).”).
In arguing that Respondent registered and used the <hotel6.com> domain name in bad faith, Complainant contends that the <hotel6.com> domain name exhibits typosquatting behavior and is, on its face, evidence of bad faith. The domain name differs from the mark by the substitution of single letter. Accordingly, the Panel agrees that Respondent has engaged in typosquatting activity, indicative of Policy ¶ 4(a)(iii) bad faith. See Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location’ . . . through Respondent’s persistent practice of ‘typosquatting’”); Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (holding that the practice of typosquatting “diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use”).
The affiliate agreement, Complainant further alleges, constitutes evidence of actual notice of Complainant’s rights in the MOTEL 6 mark and that the <hotel6.com> domain name was registered in bad faith. As Respondent is apparently an affiliate of Complainant, the Panel finds that Respondent registered the <hotel6.com> domain name in bad faith with actual knowledge of Complainant and its rights in the MOTEL 6 mark. See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Thus, Complainant has also satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hotel6.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: March 31, 2015
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page