WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Inter-Continental Hotels Corporation v. James Alex, Design Factory Case No. D2010-0974 1. The Parties
The Complainant is Inter-Continental Hotels Corporation of Atlanta, Georgia, United States of America, represented by The GigaLaw, Douglas M. Isenberg, Attorney at Law, LLC, United States of America.
The Respondent is James Alex, Design Factory of India. 2. The Domain Names and Registrar
The disputed domain names and are registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2010. On June 14, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain names. On June 15, 2010, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center sent an email communication to the Complainant on June 17, 2010 with a request for a confirmation that a copy of the Complaint has been transmitted to the Respondent. On the same date, the Complainant, copying the Center, transmitted the Complaint to the Respondent.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 18, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was July 8, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 9, 2010.
The Center appointed Jane Lambert as the sole panelist in this matter on July 16, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is a member of a group of companies known as the InterContinental Hotels Group. Companies in that group own, manage, lease or franchise 4,500 hotels with 650,000 guest rooms in nearly 100 countries and territories throughout the world. Members of the group trade under a number of widely known marks including, in particular, INTERCONTINENTAL HOTELS & RESORTS.
The Complainant has registered the following signs as United States trade or service marks:
Sign Number Class Specified Goods or Services
INTERCONTINENTAL
0890271
42
Hotel services and consulting services to others in the development and planning of hotels.
INTERCONTINENTAL HOTELS AND RESORTS
2005852
39
Arranging travel tours for hotel guests.
41
Health and fitness club services.
42
Hotel, restaurant, bar and cocktail lounge services, concierge services; planning and designing conference centers, hotels and meeting facilities for others; making hotel reservations for others.
INTERCONTINENTAL
3486561
43
Hotel services to condominium apartments in hotels.
The Respondent appeared to register on September 30, 2009 and on February 26, 2010.
Annexed to the Complaint were screen dumps of websites that once appeared at the universal resource locators “www.” and “www.” and sample inside pages. Those pages seem to have been removed because they were not visible when the Panel visited those URLs at 09:00 on Friday, July 30, 2010.
The printout of the landing page of “www.” displayed a red banner with the words “Welcome to the Intercontinental Hotel Resort”. Immediately below the banner appeared a block of text:
“JOB VACANICES
Your opportunity to work
with a leader. Start HERE”
The words in upper case letters were in Red in contrast to the rest of the text which was in white against a black background. A center panel which took up most of the page was divided into two columns. A narrow left hand column was divided into three blocks with photographs and text sub-headed “INSIDER culture”, “INSIDER shopping” and “INSIDER events”. The wider right hand column showed four photographs of expensive looking hotels. A footer showed more photographs of holiday destinations and accompanying text.
The printout of the page at “www./vacancies.html” repeated the text
“JOB VACANICES
Your opportunity to work
with a leader. Start HERE”
Those words were repeated yet again on a red strip immediately below. Below the strip were the words:
“We are currently carrying out recruitment of staff with specialisations in various fields as applicable to our organisation. Recruitment process is being outsourced to a professional HR firm. Candidates may be contacted by email or through our representatives. So far, we have had significant interest in the recruitment processes in the Asian region, as we have made much success from the highly skilled individuals recruited, especially in the development of our core IT platforms. You may contact a head through our ‘contact us' page as regards job opportunities.
With a worldwide portfolio of over 150 hotels in 65 countries, InterContinental Hotels & Resorts has been welcoming frequent international travelers for more than half a century. A pioneer in the development of the hotel industry, InterContinental properties successfully blend consistent global standards with the distinctive
cultures of their locations to deliver a truly authentic and local experience.”
The landing page at “www.” showed a photograph of an outdoor dining area above a form offering to check availability of hotel rooms at specified destinations on particular dates.
The last screen dump showed the page at “[...]” showed links to
“Related Searches: Mexico All Inclusive Resorts | Romantic Travel | Resorts | Travel Deals | Family Travel Resorts |”
above the domain name INTERCONTINENTALHOTELRESORTS.COM in upper case letters. These were followed by various sponsored searches.
Also annexed to the Complaint was an email purporting to come from “INTERCONTINENTAL HOTEL” at “[…]@” offering employment in England to one Dasgupta Ranajoy and giving instructions for obtaining a work permit from the British High Commission. The URL at the end of the email was “www.”. One of the attachments to the email was a letter setting out the particulars of the candidate's employment.
Another attachment required the candidate to
“Be informed that [he had] to bear [his] traveling documents expenses (visa fee) upfront to prove [his] commitment and readiness to work with [the Complainant] organization. All [his] expenses spent on the visa processing shall be refunded back to [him] immediately on joining. As soon as [he submitted his] expenses report.” 5. Parties' Contentions A. Complainant
The Complainant complains that the use of the disputed domain names in connection with websites that falsely appear to be associated with the Complainant amounts to “an employment-related identity-theft scam” in which the Respondent seeks fraudulently to obtain personal information from innocent job-seekers. It seeks the transfer of the disputed domain names on the grounds that:
- The disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
- The Respondent has no rights or legitimate interests in respect of the disputed domain names; and
- The disputed domain names were registered and are being used in bad faith.
As to the first ground, the Complainant relies on the United States registrations mentioned in section 4 above and contends that the differences between the disputed domain names and registered marks are trivial and insubstantial.
As to the second, the Complainant avers that
- it has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the sign INTERCONTINENTAL in any manner;
- the Respondent has never used, or made preparations to use, the disputed domain names or any name corresponding to the disputed domain names in connection with a bona fide offering of goods or services to the best of its knowledge and belief;
- again, to the best of the Complainant's knowledge and belief, the Respondent has never been commonly known by either of the disputed domain names and has never acquired any trademark or service mark rights in either of the disputed domain names; and
- the Respondent's use of the disputed domain names to attract unsuspecting job applicants and to induce them to part with money and disclose personal information hardly amounts to legitimate noncommercial or fair use.
Thus, the Respondent has no rights or legitimate interests in either of the disputed domain names.
As to the third ground, the Complainant says:
“Respondent has acted in bad faith under paragraph 4(b)(ii) of the Policy because he has registered the Disputed Domain Names in order to prevent Respondent from reflecting its INTERCONTINENTAL Trademark in a corresponding domain name and has engaged in a pattern of such conduct. Clearly, Complainant is prevented from registering either of the Disputed Domain Names, and the fact that there are two domain names in this proceeding indicates a “pattern” of conduct by Respondent.”
Further or alternatively the Complainant alleges:
“In addition, Respondent has intentionally attempted to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the INTERCONTINENTAL Trademark as to the source, sponsorship, affiliation, or endorsement of Respondent's websites or of a product or service on Respondent's websites, in violation of paragraph 4(b)(iv) of the Policy.”
Further or in the further alternative, the Complainant relies on CA, Inc. and Computer Associates Think, Inc. v. Cheryl Jones,WIPO Case No. D2009-1045 where the respondent used domain names that contained the complainant's trademark as a way to entice job seekers to provide confidential information. In that the case the panel opined:
“It is not necessary to know the present Respondent's intentions, had contact with the [job] applicant progressed further. The Panel finds on the facts that the website corresponding to the disputed domain name gave a clear impression of being the “HR” (human resources, or employment) department of “CA Managers”, which Internet users could confuse with the Complainants; that the applicant was induced to visit the site, and was initially caused to be confused into associating it with the Complainants. The Panel finds it implausible, on balance, that the Respondent's operation behind the Complainants' trademark could have any other intention than commercial gain. The Panel finds on the balance of probabilities that the Respondent intended to attract Internet users by confusion between the disputed domain name and the Complainants' trademark for commercial gain within the meaning of paragraph 4(b)(iv) of the Policy.”
The Complainant concludes that it is inconceivable that the Respondent was unaware of trademarks that have been used and registered around the world for over 60 years. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy requires the Complainant to prove that each of the following elements is present:
(i) each disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent no rights or legitimate interests in respect of each such domain name; and
(iii) each disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The domain name differs from the mark INTERCONTINENTAL HOTELS AND RESORTS only in the omission of the conjunction “and”. Anyone encountering that domain name will be reminded of the Complainant's mark and business and will assume that the Complainant had registered it.
Exactly the same could be said of .
The Panel finds the first element to be present. B. Rights or Legitimate Interests
The Complainant's averment that it has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the sign INTERCONTINENTAL in any manner is unchallenged.
The Complainant has also anticipated and answered all the possible defenses for using the disputed domain names set out in paragraph 4(c) of the Policy.
Accordingly and in view of the Panel's findings below, the second ground is present. C. Registered and Used in Bad Faith
Paragraph 4 (b) of the Policy provides:
“For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The Complainant has produced ample evidence of the fourth circumstance. The Respondent has used the disputed domain names to attract Internet users – in this case job seekers from the Indian Sub-Continent - to the Respondent's websites by creating a likelihood of confusion with the Complainant's mark as to the source of those websites or of services on those web sites. Users attracted to those sites are induced to apply for fictitious jobs whereby they are likely to be tricked into disclosing personal information. Commercial gain would come from the sale of such information to criminals. It would also come from pocketing the travelling expenses to be paid up front to be paid to bogus diplomats or agents.
Accordingly the Panel finds the third element to be present. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names, and be transferred to the Complainant.
Jane Lambert
Sole Panelist
Dated: July 30, 2010
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