The Complainant is Six Continents Hotels, Inc. of Atlanta, Georgia, United States of America, represented by the GigaLaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States of America.
The Respondent is Bunjong Chaiviriyawong of Hatyai, Thailand. 2. The Domain Name and Registrar
The disputed 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 November 13, 2013. On November 14, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 14, 2013, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on November 19, 2013.
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 the Respondent of the Complaint, and the proceedings commenced on November 20, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was December 10, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 11, 2013.
The Center appointed Alessandra Ferreri as the sole panelist in this matter on December 20, 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. 4. Factual Background
The Complainant, Six Continents Hotels, Inc, is one of a number of companies collectively known as InterContinental Hotel Group (“IHG”), one of the world’s largest hotel groups by number of rooms, that operates more than 4,600 hotels and 678,000 guest rooms in nearly 100 countries and territories around the world. IHG owns a portfolio of well-recognized and respected hotel brands including Crowne Plaza Hotels & Resorts, Holiday Inn Hotels and Resorts, Holiday Inn Express, InterContinental Hotels & Resorts, Hotel Indigo, Staybridge Suites, Candlewood Suites, Hualuxe and Even Hotels, and also manages the world’s largest hotel loyalty program, IHG Rewards Club.
The Complainant’s CROWNE PLAZA trademark was registered at least since 1983 and today is used in connection with 388 hotels, with 107,963 hotel rooms, worldwide.
The Complainant (or its affiliates) owns 286 registrations in 187 countries or geographic regions worldwide for trademarks that consist of or contain the mark CROWNE PLAZA (the “CROWNE PLAZA Trademark”); in particular the Complainant is the owner of the following registrations:
- United States trademark registration CROWNE PLAZA No. 1297211, registered on September 18, 1984;
- United States trademark registration CROWNE PLAZA No. 2329872, registered on March 14, 2000;
- Thailand trademark registration CROWNE PLAZA No. Bor1148 registered on December 1, 1992.
The Complainant has prevailed in numerous proceedings under the Policy, and in many previous UDRP decisions, panels stated the Complainant has strong rights in and to the CROWNE PLAZA Trademark.
The disputed domain name was registered on June 8, 2008 and according to the evidence submitted by the Complainant it resolves to a website that falsely appears to be an official website for, or otherwise affiliated with the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s CROWNE PLAZA Trademark because it incorporates the entirety of the Complainant’s trademark; the mere deletion of the letter “e” from the disputed domain name and the addition of the generic or descriptive words “golden” and “hotel” are not sufficient to distinguish the disputed domain name from the Complainant’s CROWNE PLAZA trademark.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has never assigned, granted, Iicensed, sold, transferred or in any way authorized the Respondent to register or use the CROWNE PLAZA Trademark in any manner.
Moreover the Respondent did not demonstrate any use or demonstrable preparation to use the disputed domain name in connection with a bone fide offering of goods or services. Indeed, the Respondent is using the disputed domain name in connection with a website that falsely appears to be an official website for, or otherwise affiliated with, the Complainant and the Complainant’s Crowne Plaza hotel in Thailand, without permission or consent of the Complainant. Such use of the disputed domain name in connection with competitive services is not a bona fide offering of goods or services under the Policy and, therefore, Respondent cannot demonstrate rights or legitimate interests under paragraph 4(c)(i) or 4(c)(iii) of the Policy.
Furthermore, the Complainant contends that, to the Complainant’s knowledge, the Respondent, whose name is Bunjong Chaiviriyawong, has never been commonly known by the disputed domain name and has never acquired any trademark or service mark rights in the disputed domain name.
Finally, the Complainant’s established use and registration of the CROWNE PLAZA Trademark preceded the registration of the disputed domain name for decades and it is exceedingly unlikely that the Respondent would be commonly known by this trademark.
The Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith.
The Respondent’s bad faith is established by the fact that by using the disputed domain name in connection with a website that falsely appears to be an official website for, or otherwise affiliated with, Complainant and Complainant’s Crowne Plaza hotel in Thailand, without permission or consent of Complainant, Respondent “intentionally uses the domain name [...] aiming to profit from Complainant’s renowned trademark by attracting Internet users. The confusion created by the domain name makes potential customers to choose other services than the Complainant’s, disrupting Complainant’s business.”
The Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor, in violation of paragraph 4(b)(iii) of the Policy; indeed the Respondent is offering hotel services, and, by offering these services under Complainant’s trademark (without permission), Respondent is clearly disrupting Complainant’s business.
Moreover, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the CROWNE PLAZA Trademark as to the source, sponsorship, affiliation, or endorsement of Respondent’s websites or of a product or service on Respondent’s website, in violation of paragraph 4(b)(iv) of the Policy.
Finally, the Respondent was certainly aware of the existence of the Complainant’s trademark and hotels at the time of the registration, given the reputation of the Complainant’s CROWNE PLAZA Trademark, and even this circumstance constitutes strong evidence of bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements:
(i) the disputed domain name registered by the Respondent 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 disputed domain name; and
(iii) the disputed domain name registered by the Respondent has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s CROWNE PLAZA Trademark, a well-known mark in which the Complainant has established rights through registration and extensive use, at least, in connection with the sector of hotels.
The disputed domain name incorporates the Complainant’s CROWNE PLAZA Trademark in its entirety; the only differences are the deletion of the letter “e” and the adjunction of the terms “golden” and “hotel”.
With regards to the omission of the silent letter “e”, according to numerous previous UDRP decisions, in this Panel’s view said slight difference is not sufficient to prevent the risk of confusion between the disputed domain name and the CROWNE PLAZA Trademark (besides the UDRP decisions mentioned by the Complainant in the Complaint, see Giorgio Armani S.p.A. Milan, Swiss Branch Mendrisio v. Min Zhi, WIPO Case No. D2013-0020; America Online Inc. v. Yetech Communication Inc., WIPO Case No. D2001-0055; GA Modefine SA v. Riccardo Bin Kara-Mat, WIPO Case No. D2002-0195; Volkswagen AG v. Emir Ulu, WIPO Case No. D2005-0987; Crédit Industriel et Commercial S.A., Banque Scalbert Dupont S.A. v. Laporte Holdings, Inc.,WIPO Case No. D2004-1110).
Even the addition of the generic or descriptive words “golden” and “hotel” is not sufficient to distinguish the disputed domain name from the Complainant’s CROWNE PLAZA Trademark.
Indeed, the confusion is enhanced by the fact that the word “hotel” clearly relates to the Complainant’s field of activity, for which the CROWNE PLAZA Trademark is registered and has been used in connection with or can be viewed as being associated therewith.
And, on the other hand, this Panel, agreeing with the Complainant’s view that the word “golden” functions as a geographic identifier (i.e., when used in connection with Thailand, the “Golden Triangle” phrase would designate the confluence of the Ruak River and the Mekong River), finds that even the addition of the geographical indicator “golden” is not enough to prevent confusing similarity between the disputed domain name and the Complainant’s trademark (see Rolls-Royce PLC v. Hallofpain, WIPO Case No. D2000-1709 and PepsiCo Inc. v. QWO, WIPO Case No. D2004-0865).
On the contrary, as it was established in many previous UDRP decisions even mentioned by the Complainant, this Panel finds that the addition of the terms “golden” is likely to enhance the confusion and to lead customers to believe that the disputed domain name is effectively linked to, affiliated with or connected to the Complainant, being specific to the hotel Crowne Plaza in the “Golden” area.
The Panel believes that people considering the disputed domain name without awareness of its content may think that the disputed domain name is in some way connected and associated with the Complainant: this situation is known as “initial interest confusion” (see Covance, Inc. and Covance Laboratories Ltd v. The Covance Campaign, WIPO Case No. D2004-0206; CBS Broadcasting Inc., f/k/a CBS Inc. v. Nabil Z. aghloul,WIPO Case No. D2004-0988).
Finally, with regards to the suffix “.com” (which indicates that the disputed domain name is registered in the “.com” gTLD), as it was established in many previous UDRP decisions (see A.P. Møller v. Web Society,WIPO Case No. D2000-0135; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429; Arab Bank for Investment And Foreign Trade (ARBIFT) v. Mr. Kenn Wagenheim / 07@,WIPO Case No. D2000-1400; Delikomat Betriebsverpflegung Gesellschaft m.b.H. v. Alexander Lehner, WIPO Case No. D2001-1447; and Crédit Industrile et Commercial SA v. Name Privacy, WIPO Case No. D2005-0457), it does not generally affect the analysis under the first element of the Policy for the purpose of determining whether it is identical or confusingly similar; indeed the suffix is a necessary component of the domain name and does not give any distinctiveness.
Thus, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
For all the foregoing reasons, the Panel finds that the Complainant has met its burden under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Respondent did not reply to the Complainant’s contentions. For that reason, the Panel has taken careful note of the factual assertions that have been made and supported by evidence by the Complainant.
In particular, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has rights or legitimate interests in the disputed domain name, such as:
(i) use or preparation to use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services prior to notice of the dispute; or
(ii) being commonly known by the disputed domain name (as an individual, business or other organization) even if the Respondent has not acquired any trademark or service mark rights; or
(iii) making legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There is no evidence in the record that the Respondent has any rights or legitimate interests in the disputed domain name.
The Complainant states that the Respondent is not affiliated with the Complainant in any way, or authorized or licensed to use the CROWNE PLAZA Trademark, or to seek registration of any domain name incorporating said mark.
The Respondent, whose name is Bunjong Chaiviriyawong, is not commonly known by the disputed domain name, and it has not acquired any trademark or service mark rights in the name or mark.
Furthermore, the use of the disputed domain name cannot be considered a bona fide offering of goods or services. Indeed the use of the website to promote services arguably competitive to, and certainly related to the Complainant’s activity, can in no way constitute a legitimate noncommercial or fair use of disputed the domain name in this case.
In light of the circumstance that CROWNE PLAZA Trademark is a well-known mark, it is very unlikely that the Respondent would have been unaware of the Complainant or its mark. On the contrary, the Respondent has registered and is using the disputed domain name with the clear intention to use the Complainant’s mark and name for its own profit, by misleading and diverting Internet consumers to its own website, or for the purpose of disrupting Complainant’s business.
See, Giorgio Armani S.p.A. v. PrivacyP / Hamid Reza Mosayebi,WIPO Case No. D2013-0985 in which the panel held that:
“Numerous previous UDRP Panels have recognized that the use of another’s trademark to generate revenue from Internet advertising can constitute registration and use in bad faith as a classic illustration of the conduct condemned by paragraph 4(b)(iv) of the Policy above (GA Modefine S.A., Giorgio Armani S.p.A. v. Kim Hontage, supra; GA MODEFINE SA., Giorgio Armani S.p.A. v. Ahmad Haqqi, supra; GA MODEFINE SA v. AES OPTICS, WIPO Case No. D2000-0306; GA MODEFINE S.A., Giorgio Armani S.p.A. v. Jung Dong Kwon,WIPO Case No. D2004-1103. Accordingly, the Panel is confident that the Respondent has taken the disputed domain name without lawful interest to misleadingly and deceptively divert Internet users to its website for commercial gain. See Yahoo! Inc. v. David Ashby,WIPO Case No. D2000-0241; Exxon Mobil Corporation v. Joseph Fisher,WIPO Case No. D2000-1412; and Microsoft Corporation v. Hakan Karabidek,WIPO Case No. DMD2010-0003.”
Finally, given the circumstance of this case, the Panel finds that the Respondent’s lack of rights or legitimate interests in the disputed domain name may also be inferred by the fact that no response was filed by the Respondent. According to earlier UDRP decisions “non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights” (see Pomellato S.p.A. v. Richard Tonetti,WIPO Case No. D2000-0493 and GA Modefine S.A. and Giorgio Armani v. Yoon-Min Yang,WIPO Case No. D2005-0090).
Therefore, based on the evidence, the Panel is satisfied that the second element of the Policy is met. C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name was registered and is being used in bad faith.
In light of the evidence filed by the Complainant, the Panel finds that the Complainant’s trademark and activity are well-known throughout the world and considering the widespread use and fame of the Complainant’s trademark, in this Panel’s view the Respondent must have been aware of them when it registered the disputed domain name. And indeed, the Respondent’s awareness may be inferred by the fact that it registered a domain name incorporating the CROWNE PLAZA Trademark in its entirety with the addition of the generic word “hotel” that clearly relates to the Complainant’s field of activity, and the geographic term “golden”, in the area of which the Complainant operates Crowne Plaza hotels (see Complaint annex 5).
As the Panel has found that the Respondent has no rights or legitimate interests in the disputed domain name, in line with other prior UDRP decisions (Banca Sella s.p.a. v. Mr. Paolo Parente,WIPO Case No. D2000-1157; Veuve Cliquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co.,WIPO Case No. D2000-0163; Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226; Ferrero S.p.A. v. Mario Pisano,WIPO Case No. D2000-1794; Ferrero S.p.A. v. Publinord S.r.l.,WIPO Case No. D2002-0395) the Panel believes that, given the circumstance of this case and in the absence of any right or legitimate interest and lacking any contrary evidence by the Respondent, the Respondent’s registration of a domain name confusingly similar to the Complainant’s well-known trademark suggests opportunistic bad faith (see also MasterCard International Incorporated v. North Tustin Dental Associates,WIPO Case No. D2007-1412 and Mastercard International Incorporated v. Total Card Inc.,WIPO Case No. D2007-1411).
Concerning the use of the disputed domain name, the Complainant has proven to the satisfaction of the Panel that the disputed domain name resolves to a web page that advertises and offers hotel services in competition with the Complainant. In the Panel’s opinion the Respondent, by such use, intentionally attempted to attract Internet users, expecting to reach the website corresponding to the Complainant’s services and to obtain information about the Complainant’s activity, to services related to another hotel, by creating a likelihood of confusion with the Complainant’s trademark and business, and damaging the Complainant’s business.
By exploiting the renown of the CROWNE PLAZA Trademark, the Respondent diverts Internet users looking for the Complainant’s website and seeks to gain profit out of the disputed domain name from the diverted traffic (besides the UDRP decisions mentioned by the Complainant, see also MasterCard International Incorporated v. Abadaba S.A., Administrador de dominios,WIPO Case No. D2008-0325 and Credit Industriel et Commercial S.A v. Maison Tropicale SA,WIPO Case No. D2007-0955).
The Panel finds that the disputed domain name was registered and used in bad faith for the purpose of intentionally attempting to attract for commercial gain, Internet users to its website (allegedly under license from the Complainant) by creating a likelihood of confusion with the Complainant’s mark. (Paragraph 4(b)(iv), Policy)
Therefore, the Panel finds that the Complainant fulfilled the criteria in the Policy, paragraph 4(a)(iii), and the disputed domain name was registered and is being used 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 disputed domain name be transferred to the Complainant.
Alessandra Ferreri
Sole Panelist
Date: January 2, 2014
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