Donald J.
Trump and Trump Hotels & Casino Resorts, Inc. v. Amgad B. Hammand d/b/a
AMGAD
Claim Number: FA0109000099707
PARTIES
Complainant is Donald J. Trump Trump Hotels & Casino Resorts, Inc., New York, NY (“Complainant”) represented by Melissa L. Klipp of Drinker Biddle & Shanley LLP. Respondent is Amgad B. Hammad AMGAD, Flushing, NY (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <trumphotel.com> registered with Network Solutions, Inc..
PANEL
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on September 13, 2001; the Forum received a hard copy of the Complaint on September 17, 2001.
On September 14, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name <trumphotel.com> is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 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 September 17, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of October 9, 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@trumphotel.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 October 19, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson 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 urges the following:
The <trumphotel.com> domain is confusingly similar to Complainant's famous marks.
Respondent does not have rights to or legitimate interests in respect to the <trumphotel.com> domain name.
Respondent registered the <trumphotel.com> domain name in bad faith.
B. Respondent did not file a response in this proceeding.
FINDINGS
Since 1984, Complainant has used the TRUMP mark in commerce in connection with casino and entertainment services. Complainant has invested millions of dollars into promoting the TRUMP mark and building reputation and goodwill in its services. The marks have been registered in the United States with the Patent and Trademark Office, and in addition, Complainant maintains numerous marks including the word TRUMP to designate services ranging from casinos and hotels to golfing.
Complainant also has a significant presence over the Internet. Complainant operates several websites incorporating its various marks including: <trump.com>, <trumptaj.com>, <trumpplaza.com>, and <trumpmarina.com>. Through Complainant's longstanding use of the TRUMP mark in domain names and Web addresses, the public has come to expect that domain names incorporating the mark be the Complainant.
Respondent registered the <trumphotel.com> domain name on January 8, 2000. Respondent has not established a website or used the domain in any way, stating that he did so "out of respect for Mr. Trump." Respondent has no connection or affiliation with Complainant. Respondent offered the domain name for sale to Complainant for $100,000.
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 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;
(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.
Complainant,
through its registration and use, has established that it has rights in the
TRUMP mark. Furthermore, the <trumphotel.com>
domain name is confusingly similar to Complainant's mark because it
incorporates Complainant's mark in its entirety and merely adds the generic
term "hotel." The generic
term is descriptive of Complainant's business and therefore associated with
Complainant. See Arthur Guinness Son & Co. (Dublin)
Ltd. v. Healy/BOSTH, D2001-0026
(WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in
dispute contains the identical mark of the Complainant combined with a generic
word or term); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001)
(finding that the <hoylecasino.net> domain name is confusingly similar to
Complainant’s HOYLE mark and that the addition of “casino,” a generic word
describing the type of business in which Complainant is engaged, does not take
the disputed domain name out of the realm of confusing similarity).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has established rights to and legitimate interests in the mark contained in its entirety in the domain name in issue. Complainant urges that Respondent has no such rights and Respondent has not come forward with a response to show such rights. Therefore, the Panel is permitted to presume that Respondent has no rights or legitimate interest in the <trumphotel.com> domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Furthermore, when Respondent fails to submit a response the Panel is permitted to make all inferences in favor of Complainant. See 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”).
There is no evidence, and Respondent does not refute, that Respondent has rights or legitimate interests in respect to the disputed domain name. See Body Shop Int’l PLC v. CPIC NET & Hussain, D2000-1214 (WIPO Nov. 26, 2000) (finding “that on the evidence provided by the Complainant and in the absence of any submissions from the Respondents, that the Complainant has established that (i) the Respondents are not using and have not used, or are not demonstrating and have not demonstrated, an intent to use the said domain name in connection with a bona fide offering of goods or services; (ii) the Respondents are not and have not been commonly known by the said domain name; and (iii) the Respondents are not making legitimate noncommercial or fair use of the said domain name, without intending to mislead and divert consumers or to tarnish Complainant’s <THE BODY SHOP> trademark and service mark”).
Furthermore, the fact that Respondent has held the disputed domain name for almost two years and has failed to develop a website does not establish such rights. To the contrary, it permits a finding that Respondent has no such rights. See Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop the site demonstrates that Respondents have not established any rights or legitimate interests in said domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant urges that Respondent registered and used the domain name in issue in bad faith. The famous and distinctive nature of Complainant's TRUMP mark permits the Panel to find that Respondent knew of the existence of Complainant's mark at the time Respondent registered the infringing domain name. This permits a finding of bad faith. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the “domain names are so obviously connected with the Complainants that the use or registration by anyone other than Complainants suggests ‘opportunistic bad faith’”); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).
Respondent's registration and passive holding of the <trumphotel.com> domain name also supports a finding of bad faith. See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose).
Furthermore, Respondent's offer to sell the disputed domain name to the Complainant for $100,000, a sum exceeding expected out-of-pocket expenses resulting from registration, also permits a finding of bad faith pursuant to Policy ¶ 4(b)(i). See Little Six, Inc v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding Respondent's offer to sell the domain name at issue to Complainant was evidence of bad faith); see also Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that the Respondent demonstrated bad faith when he requested monetary compensation beyond out of pocket costs in exchange for the registered domain name).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.
Accordingly, it is Ordered that the domain name <trumphotel.com> be transferred from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: November 2, 2001.
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