InTown Suites Management, Inc. v. zhang wei
Claim Number: FA2109001964174
Complainant is InTown Suites Management, Inc. (“Complainant”), represented by Patrick J. Concannon of Nutter, McClennen & Fish, LLP, Massachusetts, USA. Respondent is zhang wei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <intownsuites.co>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 17, 2021. The Forum received payment on September 17, 2021.
On September 23, 2021, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <intownsuites.co> domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) registration agreement, which is in Chinese, 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 September 28, 2021, the Forum served the Complaint and all Annexes, including a English and Chinese language Written Notice of the Complaint, setting a deadline of October 18, 2021 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@intownsuites.co. Also on September 28, 2021, the English and Chinese language 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 October 21, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
As noted, the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) registration agreement is in Chinese. Pursuant to Rule 11(a), the language of the proceeding shall be Chinese, unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Complainant requests that the proceeding be conducted in English, noting that the <intownsuites.co> domain name is in the English language and resolves to an English language website. In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English and Chinese language Written Notice of the Complaint and, absent a Response, determines that the proceedings shall be conducted in English.
A. Complainant
Complainant operates in the hotel industry. Complainant has rights in the INTOWN SUITES mark through registrations with the United States Patent and Trademark Office (“USPTO”). Respondent’s <intownsuites.co> domain name is identical or confusingly similar to Complainant’s mark.
Respondent lacks rights and legitimate interests in the <intownsuites.co> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its INTOWN SUITES mark. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead hosts parked, competing pay-per-clicks on the domain name’s resolving website. The domain name is almost identical to Complainant’s domain name <intownsuites.com>, merely omitting the last “m”, which means that Respondent is taking advantage of Internet users’ typographical errors.
Respondent registered the <intownsuites.co> domain name in bad faith with actual knowledge of Complainant’s rights in the INTOWN SUITES mark at the time of registration. Respondent uses the domain name to disrupt Complainant’s business for commercial gain by hosting parked, pay-per-click links on the domain name’s resolving website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has shown that it has rights in the INTOWN SUITES mark through several registrations with the USPTO, including Reg. No. 2,233,774, registered on March 23, 1999 for hotel and motel services. The Panel finds Respondent’s <intownsuites.co> domain name to be identical to Complainant’s mark as it incorporates the mark in its entirety and adds the inconsequential “.co” top-level domain (“TLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <intownsuites.co> domain name was registered on July 11, 2021, many years after Complainant has shown that its INTOWN SUITES mark had become well-known. It resolves to a website which features parked-pay-per-click links, including links to a direct competitor of Complainant, Choice Hotels International, Inc.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <intownsuites.co> domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s INTOWN SUITES mark when Respondent registered the <intownsuites.co> domain name and that Respondent’s registration and use of a typosquatted version of Complainant’s <intownsuites.com> domain name, which is virtually identical to Complainant’s INTOWN SUITES mark, to divert business away from Complainant to Complainant’s competitor demonstrates registration and use in bad faith under Policy ¶ 4(b)(iii).
Further, the Panel finds that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, and endorsement of the services offered through links on Respondent’s website. This demonstrates registration and use in bad faith under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <intownsuites.co> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: October 25, 2021
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