The Complainant is Six Continents Hotels Inc. 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 “m on” of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 21, 2012. On December 21, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 21, 2012, 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 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 January 3, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was January 23, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 25, 2013.
The Center appointed Colin Yee Cheng Ong as the sole panelist in this matter on February 5, 2013. 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.
Due to exceptional circumstances, it has been necessary to this Panel to extend the period for issuing a decision in this case to the date indicated under paragraph 7 below. 4. Factual Background
4.1 The Complainant has asserted that it is part of a number of companies collectively known as InterContinental Hotels Group (“IHG”). It claims that it is the world’s largest hotel group by number of rooms and that IHG ultimately owns, manages, leases or franchises more than 4,500 hotels and 672,000 guest rooms, serving more than 153 million guests annually in nearly 100 countries around the world. IHG is said to own a portfolio of hotel brands including Crowne Plaza Hotels & Resorts, InterContinental Hotels & Resorts, Holiday Inn Hotels and Resorts, Holiday Inn Express, Hotel Indigo, Staybridge Suites and Candlewood Suites, and also manages the world’s largest hotel loyalty program, Priority Club Rewards.
4.2 The Complainant has provided evidence to show that it is the owner of the domain name , which was created on March 31, 1995.
4.3 The Complainant has also provided evidence to show that it owned 280 registrations in 157 countries or geographic regions worldwide for trademarks that consist of or contain the mark CROWNE PLAZA.
4.4 According to the Registrar’s verification response, the Domain Name was registered on February 3, 2010. 5. Parties’ Contentions A. Complainant
5.1 The Complainant contends that the Domain Name is confusingly similar to its CROWNE PLAZA Trademark in which it holds rights for the following reasons:
(i) The Domain Name contains the Complainant’s CROWNE PLAZA Trademark in its entirety with the exception of a single letter, where the letter “e”, was substituted to the letter “o.” The Complainant asserts that such a minor difference is insignificant for purposes of confusing similarity and that such conduct is widely known as ‘typosquatting’.
(iv) The Complainant has argued that such “slight differences are obvious misspellings or typographical errors” do not eliminate confusing similarity.
(v) Finally, the Complainant submits that generic top-level domains (“gTLDs”), such as “.info” and “.com”, can be ignored for the purpose of comparison of the trade mark with the domain name and refers to the decision Check Into Cash, Inc. v. Peter Wolfe, Microtel Ltd.,WIPO Case No. D2008-0745. On this basis, the Complainant concludes that the Domain Name is confusingly similar to the mark in which the Complainant has rights.
5.2 The Complainant contends that the Respondent has no rights and legitimate interests in the Domain Name for the following reasons:
(i) The Complainant has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the CROWNE PLAZA Trademark in any manner. The Complainant submits that this fact is on its own sufficient to prove the second criterion of the Policy and relies upon the decision Six Continents Hotels, Inc. v. IQ Management Corporation,WIPO Case No. D2004-0272.
(ii) The Respondent’s use does not satisfy the test for bona fide use established in prior UDRP decisions. The Respondent does not use the Domain Name in connection with a bona fide offering of goods or services.
5.3 The Complainant, lastly, contends that the Domain Name was registered and is being used in bad faith for the following reasons:
(i) The Complainant submits that by using the Complainant’s CROWNE PLAZA and PRIORITY CLUB logos on a website offering hotel services, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website. This has created a likelihood of confusion with the CROWNE PLAZA Trademark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or of a product or service on the Respondent’s website.
(ii) The Complainant then referred to other decisions under the Policy and has tried to impart some conclusions on those decisions onto the instant case. It concludes that the Respondent, in the instant case, falls in the same position as respondents in other cases and is “likely fraudulent” and “indicates an intent to deceive or, at a minimum, act in bad faith with the intent for commercial gain.”
(iii) Finally, the Complainant assets that the Respondent has acted in bad faith because Respondent’s registration of the Domain Name obviously prevents the Complainant from reflecting its mark in a corresponding domain name and because Respondent has “engaged in a pattern of such conduct” as evidenced by “a previous decision under the Policy against Respondent”, filed by another hotel company, Starwood Hotels & Resorts Worldwide, Inc. and Westin Hotel Management, L.P. v. M On,WIPO Case No. D2012-1009.
The Complainant requests the transfer of the Domain Name. B. Respondent
5.4 The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
6.1 The Panel has reviewed the Complaint together with its annexes and, in the light of this material, the Panel finds as set out below. This Panel does not find any exceptional circumstances pursuant to paragraph 5(e) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.
6.2 The Respondent has been accorded with the opportunity to provide submissions and evidence to rebut the Complainant’s contentions. Some previous UDRP panels have suggested that if a respondent chooses not to present any such evidence, an inference may be made that such evidence would not have been favorable to the respondent, or that it accepts the claims of the complainant, or even that it does not wish to respond or defend its perceived interest in a domain name. (See cases set out by the Complainant above). However, this Panel respectfully views that any such adverse inference is not conclusive at all and the Complainant would still be obliged to prove its case in accordance with the Policy and the Rules. The burden of proof falls upon and remains on the Complainant. In such case of silence by the respondent, the complainant shall then continue with its case and shall have to prove the three elements that are required by the Policy without opposition than the complainant’s own ability to explain them. (See: PRL USA Holdings, Inc. v. Yan Shif,WIPO Case No. D2006-0700). Under paragraph 14 of the Rules, where a party does not comply with any provision of the Rules, the panel “shall draw such inferences therefrom as it considers appropriate”. Therefore, in a case where a respondent fails to put in a response, a panel may draw negative inferences from the respondent’s default (see paragraph 4.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, “WIPO Overview 2.0”). Notwithstanding the default of the Respondent, it remains incumbent on the Complainant to make out its case in all respects as set out in paragraph 4(a) of the Policy (see, PRL USA Holdings, Inc. v. Yan Shif,WIPO Case No. D2006-0700). Namely, the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
6.3 Pursuant to paragraph 4(a)(i) of the Policy, a complainant must prove that the domain name it seeks to have cancelled or transferred to itself is identical or confusingly similar to a trademark or service mark in which the complainant has rights.
6.4 In line with this provision, the complainant must prove two limbs, i.e., that it holds the trademark or service mark rights; and that the domain name is identical with or confusingly similar to its trademark or service mark. The test of identity or confusing similarity under the Policy is confined to a comparison of the domain name and the trademark alone, independent of the domain name’s use or other marketing factors, usually considered in trademark infringement (see, for example, Ebay Inc. v. Wangming,WIPO Case No. D2006-1107).
6.5 The Complainant has appended to the Complaint a list of registered trademarks for the mark CROWNE PLAZA. It is quite clear that the Complainant is the owner of a number of trademarks that simply comprise the word “CROWNE PLAZA”. The Respondent’s domain name registration consisting of the Complainant’s trademark CROWNE PLAZA in its entirety with the exception of a single letter, that is, the letter “e” has been changed to the letter “o” does not prevent the Domain Name from being confusingly similar to the Complainant’s registered mark. They do indeed cause confusing similarity and many previous UDRP decisions have found so in similar situations including such as Hunter Douglas Industries, BV, and Hunter Douglas Window Fashions, Inc. v. Erik Little,WIPO Case No. D2005-0460.
Given this, the Panel has little difficulty in concluding that the Domain Name is confusing similar to a number of trademarks in which the Complainant has rights.
6.6 In the circumstances, the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
6.7 The Panel accepts that the Complainant has provided sufficient evidence that the Respondent does not use the Domain Name in connection with a bona fide offering of goods or services. At the heart of the Complaint is the Complainant’s contention that the Respondent has taken the trademark of the Complainant with a view to attracting Internet users to a website offering hotel services, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to a website. The Respondent has even displayed on the website the Complainant’s Crowne Plaza and Priority Club signs. The Panel accepts that such activity clearly does not provide the Respondent with a legitimate interest in the Domain Name.
6.8 According to paragraph 4(a)(ii) of the Policy, the Complainant has to demonstrate that the Respondent has no rights or legitimate interests in the Domain Name. However, it is the prevailing view among UDRP decisions that where a complainant makes a prima facie case that the respondent has no rights or legitimate interests in the domain name, and the respondent fails to show, inter alia, one of the three circumstances under paragraph 4(c) of the Policy, then the respondent may lack a right or legitimate interest in the domain name..
6.9 As previously held by other UDRP decisions, “rights or legitimate interests cannot be created where the user of the domain name at issue would not choose such a name unless he was seeking to create an impression of association with the Complainant”. (See eBay Inc. v. Akram Mehmood,WIPO Case No. DAE2007-0001).
6.10 As another UDRP decision has held in the case Consitex S.A., Lanificio Ermenegildo Zegna & Figli S.p.A., Ermenegildo Zegna Corporation v. Varentinuo inc. reg by ,WIPO Case No. D2008-0186, if a respondent wants to argue that it has a right or legitimate interest in the domain name on this basis, it is then for the respondent to positively advance that case and to bring forward evidence in support (see paragraph 6.16 of that decision).
6.11 The Respondent has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to rights or legitimate interests in the Domain Name. There is no evidence on the record of this proceeding to suggest that the Respondent has been commonly known by the Domain Name, or that the Respondent has made noncommercial or fair use of the Domain Name. In the Panel’s view. the Respondent has also not used the Domain Name in connection with a bona fide offering of goods or services. The Panel thus finds that the Complainant has made a prima facie case showing that the Respondent has no rights or legitimate interests in the Domain Name has not been rebutted by the Respondent.
6.12 Under these circumstances, the Panel takes the view that the Respondent has no rights or legitimate interests in the Domain Name and that the requirement of paragraph 4(a)(ii) is also satisfied. C. Registered and Used in Bad Faith
6.13 The Complainant submitted that by using the Domain Name which is confusingly similar to the Complainant’s mark, in relation to websites purportedly advertising hotel rooms under the CROWNE PLAZA trade mark, the Respondent is intentionally attempting to attract for commercial gain Internet users to the Respondent’s websites by creating a likelihood of confusion with the Complainant’s mark in order to suggest that the websites are associated with, endorsed or sponsored by, or otherwise connected to the Complainant. Noting the Panel’s recording of the Complainant’s contentions in paragraph 5.3(i) above, the Panel has little difficulty in accepting that, when the Respondent registered the Domain Name, it did so with awareness of the Complainant’s business worldwide and its CROWNE PLAZA trademark.
6.14 The Panel does not accept the Complainant’s assertion that because the Respondent had registered the Domain Name, this would obviously prevent the Complainant from reflecting its mark in a corresponding domain name. This is not necessarily true as there is nothing to stop the Complainant from registering domain names that reflect its trademark, unless such a domain name had already been registered. The Panel also does not accept the submission that because the Respondent had “engaged in a pattern of such conduct” as evidenced by “a previous decision under the Policy against Respondent”, it is automatically deemed to be acting in bad faith. This is not a proper legal submission as a Panel cannot simply accept similar fact evidence without conducting a balancing exercise to weighing the probative value of such evidence against its prejudicial effect.
6.15 The Panel, however, accepts that the Respondent registered the Domain Name in the knowledge of the Complainant’s business and its use of the CROWNE PLAZA trademark. The Panel accepts the evidence presented by the Complainant as well as the Complainant’s submission that the Respondent is using the Domain Name to intentionally gain commercially by attracting Internet users to websites, by creating a likelihood of confusion with the Complainant’s mark
6.16 Paragraph 4(b) of the Policy provides a list of examples of evidence of bad faith registration and use. Paragraph 4(b)(iv) refers to use of a domain name to intentionally attempt to attract for commercial gain Internet users to a website by creating a likelihood of confusion with the Complainant’s mark as to the source of a website.
6.17 Given that the Respondent has failed to demonstrate (for the reasons set out under the heading Rights and Legitimate Interests above) that it was using the Domain Name genuinely for its own goods or services and that it has also failed to disclose on the website associated with the Domain Name the true relationship between it and the Complainant, the Panel concludes that the Respondent in this case did intentionally attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant’s mark. The activities of the Respondent, therefore, fall within the scope of paragraph 4(b)(iv) of the Policy.
6.18 In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(iii) of the Policy. This is sufficient to dispose of this matter in favour of the Complainant. The Panel has been able to conclude that the Respondent registered and used the Domain Name in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to the Complainant.
Dr Colin Yee Cheng Ong
Sole Panelist
Dated: March 11, 2013
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