Complainant is SPACE NEEDLE LLC of Seattle, Washington, United States of America represented by Law Office of Mark J. Nielsen, United States of America.
Respondent is Arizona Travel Group of Queen Creek, Arizona, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with Melbourne IT Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 9, 2011. On June 10, 2011, the Center transmitted by email to Melbourne IT Ltd. a request for registrar verification in connection with the disputed domain name. On June 16, 2011, Melbourne IT Ltd. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on June 17, 2011 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on June 17, 2011.
The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on June 20, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was July 10, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 11, 2011. On July 13, 2011, the Center received an email from the Respondent indicating: “Hello,
I am not contesting this case and will happily transfer the domain. You are making this more complicated than it needs to be.”
The Center appointed Sandra A. Sellers as the sole panelist in this matter on July 25, 2011. 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. Effect of Respondent’s email of July 13, 2011
As set forth above, Respondent sent to the Center an email in which he stated that he would not contest the case and would transfer the domain name. Since Complainant has not withdrawn the Complaint, the Panel feels it necessary to decide the case on the merits under the Rules. However, Respondent’s indication that it will voluntarily transfer the domain name will be considered as a negative inference against Respondent. 5. Factual Background
Complainant owns and operates the Space Needle in Seattle, Washington, United States of America (“U.S.”). The Space Needle was constructed in 1961-62 for the Seattle World’s Fair. The Space Needle is a unique and widely recognized structure over 600 feet high that attracts over one million visitors annually for its panoramic view of the Seattle area, Puget Sound and surrounding mountains. Over 50 million people have visited since the Space Needle opened in 1962.
Complainant owns trademark registrations for SPACE NEEDLE in a variety of forms, including the work mark, the image of the Space Needle, and a stylized design of the Space Needle for a wide variety of goods and services. Complainant obtained its first U.S. registration for SPACE NEEDLE in 1963 and maintains a large portfolio of U.S. registrations. A complete list of active registrations for SPACE NEEDLE and for depictions of the Space Needle is attached to the Complaint as Ex. C.
The Space Needle is one of the top tourist attractions in Seattle. As such, the Space Needle itself and services offered by Complainant are of particular interest to tourists and other visitors to Seattle who are also likely to look for hotel services for their stay in Seattle.
Complainant owns and maintains an active presence on the Internet to promote its services. To assist Internet users planning to visit the Space Needle, Complainant’s website links to the Sheraton Seattle Hotel at “www./iamseattle/lodging.html”.
The disputed domain name was registered on August 30, 2007. The disputed domain resolves to a website named “Space Needle Hotels” that allows visitors to review and make reservations for hotels in Seattle, as well as rental cars, tours, and entertainment tickets. Respondent’s website not only uses the SPACE NEEDLE trademark in its URL and name of the website, the words “Space Needle” are presented in a different color and are separated by a drawing of the upper portion of the Space Needle itself. Respondent’s website links to hotels and other businesses with no affiliation to Complainant. Toward the bottom of the homepage, there are a few paragraphs of basic information about the Space Needle. In the legal notices at the bottom of the home page, a copyright notice is shown as follows: “©2010 Space Needle Hotels”. 6. Parties’ Contentions A. Complainant
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s mark because it consists of Complainant’s mark in its entirety, combined with the generic word “hotels”. Complainant further alleges that Respondent has no rights or legitimate interests in the disputed domain name, and that it registered and uses the disputed domain name in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. 7. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest a respondent of a disputed domain name, a complainant must demonstrate each of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
As set forth above, Complainant owns and operates the Space Needle, which was constructed for the Seattle World’s Fair and has attracted over 50 million visitors since it opened in 1962.
Complainant owns SPACE NEEDLE trademark registrations in a variety of forms, including the work mark, the image of the Space Needle, and a stylized design of the Space Needle for a wide variety of goods and services. Complainant obtained its first U.S. registration of SPACE NEEDLE in 1963 and maintains a large portfolio of U.S. registrations. A complete list of active registrations for SPACE NEEDLE and for depictions of the Space Needle is attached to the Complaint as Ex. C.
Additionally, Complainant owns and maintains an active presence on the Internet to promote its services.
The disputed domain name incorporates Complainant’s mark in its entirety, with the addition of the generic word “hotels”. Many panels have held that the addition of a generic term does not sufficiently distinguish the disputed domain name from a complainant’s mark as to avoid confusing similarity with the complainant’s mark. In particular, this dispute is strikingly similar to Space Needle LLC v Iqbal Lalji,WIPO Case No. D2008-1883, in which a previous panel found that the addition of the common term “hotels” to the SPACE NEEDLE trademark did not mitigate the confusing similarity between the domain name and the complainant’s SPACE NEEDLE trademarks.
The Panel finds that Complainant has demonstrated that it has rights in the SPACE NEEDLE mark, and that the disputed domain name is confusingly similar to Complainant’s registered mark, so that Complainant meets the first criterion of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Because it is generally difficult for a complainant to prove the fact that a respondent does not have any rights or legitimate interests in a disputed domain name, previous UDRP decisions have found it sufficient for a complainant to make a prima facie showing of its assertion.
Respondent is not affiliated with or related to Complainant, nor is Respondent licensed or authorized to use the SPACE NEEDLE mark. On the evidence before the Panel, Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name. The Panel is satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name.
Respondent is in default, and has not provided any evidence in its own favor.
The Panel finds that the evidence is sufficient to establish that Respondent has no rights or legitimate interests in the disputed domain name, and thus Complainant meets the second criterion of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
As previously noted, the Space Needle was constructed in 1961-62 for the Seattle World’s Fair. The Space Needle is a unique and widely recognized structure over 600 feet high that attracts over one million visitors annually for its panoramic view of the Seattle area, Puget Sound and surrounding mountains. Over 50 million people have visited since the Space Needle opened in 1962.
Additionally, Complainant obtained its first U.S. registration for SPACE NEEDLE in 1963. Complainant’s trademark registration portfolio includes SPACE NEEDLE trademark registrations in a variety of forms, including the work mark, the image of the Space Needle, and a stylized design of the Space Needle for a wide variety of goods and services.
The disputed domain name was registered on August 30, 2007. Respondent’s website not only uses the SPACE NEEDLE trademark in its URL and name of the website, the words “Space Needle” are presented in a different color and are separated by a drawing of the upper portion of the Space Needle itself. Toward the bottom of the home page there are a few paragraphs of basic information about the Space Needle.
Based on these facts, this Panel infers that Respondent was aware or must have been aware of Complainant’s mark when Respondent registered the disputed domain name, and therefore registered it in bad faith. See, e.g., Jupiters Limited v. Aaron Hall,WIPO Case No. D2000-0574, in which the panel found it “inevitable that [r]espondent registered the domain names in full knowledge of [c]omplainant’s rights and interests”.
Under paragraph 4(b)(iv) of the Policy, the Panel may find that Respondent has used the disputed domain name in bad faith if “[respondent] has intentionally attempted to attract, for commercial gain, Internet users to [respondent’s] website 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 [respondent’s] web site or location or of a product or service on your web site or location.” Here, the disputed domain name resolves to a website that contains links to make hotel, rental car and tour reservations, all for the commercial benefit of Respondent.
Complainant alleges that Respondent’s website was deliberately made to look like a website operated by Complainant. This Panel agrees that Respondent’s use of both the SPACE NEEDLE word mark and a graphic depiction of the upper portion of the Space Needle suggest that this is a reasonable conclusion to be drawn by Internet users. Respondent’s use of the disputed domain name clearly is an attempt to create confusion to attract Internet users to Respondent’s website for commercial gain.
It is now a well-known practice to display on a web page or search engine various links to other commercial websites under a pay-per-click commission scheme: every link activated by an Internet user enables the host to collect financial remuneration proportional to the number of connections. See, e.g., Deutsche Telekom AG v. WWW Enterprise, Inc.,WIPO Case No. D2004-1078. Therefore, in the Panel’s view, it is evident that Respondent has registered and used the disputed domain name with the intent to attract Internet customers looking for Complainant’s hotel, thereby likely profiting from click-through revenue generated by the sponsored links.
This Panel finds that Respondent has registered and used the disputed domain name in bad faith, within the meaning of paragraph 4(b)(iv) of the Policy and that Complainant meets the third criterion of paragraph 4(a) of the Policy. 8. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to Complainant.
Sandra A. Sellers
Sole Panelist
Dated: August 1, 2011
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