Complainant is Starwood Hotels & Resorts Worldwide, Inc., The Sheraton LLC, and Sheraton International, Inc. of United States of America, represented by the law firm Fross Zelnick Lehrman & Zissu, PC, United States of America.
Respondent is Mike James of Chicago, Illinois, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 21, 2013. On August 22, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, the Registrar transmitted its verification response to the Center by email confirming Respondent as the registrant and provided 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 6, 2013. In accordance with paragraph 5(a) of the Rules, the due date for Response was September 26, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 27, 2013.
The Center appointed Richard G. Lyon as the sole panelist in this matter on September 30, 2013. The Panel has submitted his Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. The Panel finds that it was properly constituted and has jurisdiction to decide this administrative proceeding. 4. Factual Background
Complainant owns, operates, and franchises hotels and other leisure properties around the world. Complainant holds trademarks for SHERATON in many countries, including several in the United States, which are duly registered as early as 1959 with the appropriate national trademark authorities. Complainant’s SHERATON marks are well known in the United States and elsewhere. One of its chains of hotels in the United States is branded Sheraton Suites, and one of its hotels in that group is the Sheraton Suites Hotel in Key West, Florida, United States.
Respondent registered the disputed domain name on October 20, 2005. The disputed domain name currently resolves to a splash page at which the Internet user is invited to take a survey in order to qualify for a prize.1 At the bottom of the splash page is a statement that “This domain name may be for sale.” 5. Parties’ Contentions A. Complainant
Complainant contends that the disputed domain name is confusingly similar to Complainant’s SHERATON marks, that Respondent lacks rights or legitimate interests in the disputed domain name, and that Respondent registered and used the disputed domain name in bad faith. Relevant particulars of these contentions, most of which the Panel accepts, are set out in Section 6 below. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Standard of Proof in a Default Case
Unlike civil litigation, Respondent’s default does not result in an automatic decision in Complainant’s favor or an admission of the truth of the factual allegations in the Complaint. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 4.6. Complainant must still establish with competent evidence each of the operative sections of paragraph 4(a) of the Policy. Complainant has done so in this proceeding. B. Identical or Confusingly Similar
Complainant has identified scores of registered marks for SHERATON, the distinctive and dominant feature of the disputed domain name. Respondent’s adding words that incorporate one of Complainant’s brands and properties enhance confusing similarity with Complainant’s marks. Complainant has carried its evidentiary burden under paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests
Complainant has never authorized Respondent to use its marks and nothing in the record suggests that Respondent has been commonly known by any designation that includes the word “sheraton.” Complainant has thus made its prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name, and the burden of production thus shifts to Respondent to counter the same. WIPO Overview 2.0, paragraph 2.1. Respondent has submitted nothing, and the available evidence, from the Complaint and the Panel’s accessing the disputed domain name, reveals a use that plainly is commercial and not legitimate under a wealth of UDRP cases. Complainant has carried its evidentiary burden under paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
The use to which Respondent currently puts the disputed domain name clearly shows bad faith. Respondent’s use is commercial and presumably Respondent or the Registrar profits from Internet users who proceed with the survey that is required to obtain the promised prize. This conduct falls squarely within the example of bad faith use in paragraph 4(b)(iv) of the Policy: “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.” What this Policy provision cites as evidence of bad faith is using Complainant’s mark to attract Internet users for profit; activity competitive with Complainant is not cited in this clause and not necessary to fall within it.
Respondent’s public offer of the disputed domain name for sale, though possibly conditioned and not necessarily directed to Complainant, may fall within a second example of evidence of bad faith in paragraph 4(b)(i) of the Policy: “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.” Whether or not paragraph 4(b)(i) applies, in circumstances such as the present case the general offer for sale is further evidence of bad faith. See, e.g., AT&T Corp v. rnetworld,WIPO Case No. D2006-0569; BolognaFiere S.p.A. v. Currentbank-Promotools, SA. Inc/Isidro Sentis a/k/a Alex Bars,WIPO Case No. D2004-0830.
In the circumstances of this case the Panel has no difficulty imputing bad faith in registration from this bad faith use. Complainant’s marks are well known around the world and distinctive; there is scant likelihood of accidentally or innocently selecting “sheraton” as the dominant feature of a domain name. Respondent has blocked access to the Internet archive by means of robots.txt, a separate indication of registration in bad faith. WIPO Overview 2.0, paragraph 3.10. Eight years’ going by between registration of the disputed domain name and obvious bad faith use does not weaken the inference of registration in bad faith, as the passage of time standing alone is not a defense in a Policy proceeding. WIPO Overview 2.0, paragraph 4.10; see also Opera National de Paris v. Vertical Axis Inc.,WIPO Case No. D2013-0874. Respondent has demonstrated no prior legitimate use and in fact prevented the Panel or Complainant from an independent investigation. Complainant has carried its evidentiary burden under paragraph 4(a)(iii). 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 disputed domain name be transferred to Complainant.
Richard G. Lyon
Sole Panelist
Date: October 6, 2013
1 When the Panel accessed the disputed domain name, the prize was an iPhone; according to a copy submitted with the Complaint at one time, the prize was a credit card sponsored by a prominent credit card network.
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