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 Tirupati Hotel / Tirupati Hotal of Kathmandu, Nepal. 2. The Domain Name and Registrar
The disputed domain name (the "Disputed Domain Name") is registered with Net 4 India Limited (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 28, 2015. On October 29, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On November 3, 2015, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 12, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 2, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 3, 2015.
The Center appointed José Pio Tamassia Santos as the sole panelist in this matter on December 15, 2015. 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
4.1. The Complainant is one of a number of companies collectively known as InterContinental Hotels Group ("IHG"), one of the world's largest hotel groups by number of rooms. Companies within IHG own, manage, lease or franchise, through various subsidiaries, more than 4,900 hotels and 727,000 guest rooms in nearly 100 countries and territories around the world. IHG owns a portfolio of well-recognized and respected hotel brands including Holiday Inn Hotels and Resorts, Holiday Inn Express, Crowne Plaza Hotels & Resorts, 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.
4.2. The Complainant has prevailed in numerous proceedings under the Policy, including the largest UDRP complaint ever filed, which resulted in a decision ordering the transfer of 1,519 domain names to the Complainant, many of which contained the HOLIDAY INN trademark.
4.3. In this scenario, the Complainant noticed that the Disputed Domain Name was registered by the Respondent. Furthermore the Respondent is using the Disputed Domain Name in connection with a website that falsely purports to be a "Holiday Inn" hotel in Tirupati or Kathmandu.
4.4. The Complainant's HOLIDAY INN brand was founded in 1952 and today is used in connection with 1,148 hotels, offering 208,609 rooms worldwide, including in India. The Disputed Domain Name was registered on June 19, 2014. 5. Parties' Contentions A. Complainant
5.1. The Complainant states that the Respondent registered without authorization the Disputed Domain Name on June 19, 2014.
5.2. Furthermore the Complainant contends that the Disputed Domain Name contains the HOLIDAY INN mark in its entirety, plus the geographic identifier "Tirupati" (a city in the Chittoor district of the Indian state of Andhra Pradesh).
5.3. The Complainant states that the Respondent lacks rights or legitimate interests in the Disputed Domain Name, which was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
6.1 Paragraph 4(a) of the Policy provides specified remedies to trademark owners against registrants of domain names where the owner of the mark (the Complainant) proves each of the following elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of disputed the domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
6.2 The Complainant has the burden of proof, by a preponderance of the evidence, in respect to each element in paragraph 4(a) of the Policy.
6.3 The Respondent, having failed to respond in the present proceeding, is in default, and in accordance with paragraph 14(b) of the Rules, "the panel shall draw such inferences […] as it considers appropriate". A. Identical or Confusingly Similar
6.4 The Complainant's HOLIDAY INN brand was founded in 1952 and today is used in connection with 1,148 hotels, offering 208,609 rooms worldwide, including in India.
6.5 The Complainant (or its affiliates) owns more than 1,700 registrations in at least 200 countries or geographic regions worldwide for trademarks that consist of or contain the mark HOLIDAY INN (the "HOLIDAY INN Trademark").
6.6 The Disputed Domain Name contains the HOLIDAY INN Trademark in its entirety, plus the geographic identifier "Tirupati" (a city in the Chittoor district of the Indian state of Andhra Pradesh).
6.7 The fact that a domain name wholly incorporates a complainant's registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy. See, for example, Six Continent Hotels, Inc. v. The Omnicorp,WIPO Case No. D2005-1249 and Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903.
6.8 Where, as here, the second-level domain contains a complainant's trademark ("holidayinn") plus a geographic identifier ("tirupati"), previous panels under the Policy have found confusing similarity. See, for example, Inter-Continental Hotels Corporation v. Hui Lian Yang/Yang Hui Lian; a/k/a Jian Ren Zhou/Zhou Jian Ren; a/k/a Jian Guo Liu/Liu Jian Guo,WIPO Case No. D2014-0272.
6.9 Accordingly, the Disputed Domain Name is confusingly similar to the HOLIDAY INN Trademark.
The first element of the Policy, therefore, has been met. B. Rights or Legitimate Interests
6.10 The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name for the following reasons:
6.11 The Complainant has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the HOLIDAY INN Trademark in any manner.
6.12 There is no evidence of any commercial relationship between the Complainant and the Respondent which would entitle the Respondent to the mark.
6.13 Upon information and belief, the Respondent has never used, or made preparations to use, the Disputed Domain Name or any name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services. The Respondent is using the Disputed Domain Name in connection with a website that falsely appears to be affiliated with the Complainant and a Holiday Inn hotel in Tirupati, India, without permission or consent of the Complainant (See, Accor and Soluxury HMC v. Yu Gang,WIPO Case No. D2012-1593; See also Starwood Hotels & Resorts Worldwide, Inc. and Westin Hotel Management, L.P. v. M On,WIPO Case No. D2012-1009).
6.14 The Respondent 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.
6.15 Finally the Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant's HOLIDAY INN Trademark. Rather, the Respondent is clearly making a commercial use of the Disputed Domain Name by offering hotel services, without permission or consent of the Complainant. (See, Six Continents Hotels, Inc. v. Domains By Proxy, LLC, DomainsByP / Peiyan Yao,WIPO Case No. D2013-0660).
6.16 For all the above reasons, the Panel concludes that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name, which the Respondent has not rebutted. Accordingly, the second element of the Policy has been established. C. Registered and Used in Bad Faith
6.17 Paragraph 4(b) of the Policy provides that "for the purposes of paragraph 4(a)(iii) of the Policy, 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 the respondent has registered or has 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 the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) that the respondent has 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 the respondent has engaged in a pattern of such conduct; or
(iii) that the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the 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 the respondent's website or location or of a product or service on the respondent's website or location.
6.18 By using the Complainant's HOLIDAY INN Trademark on a website offering hotel services via a domain name that also contains the HOLIDAY INN Trademark, the Respondent quite obviously has intentionally attempted to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the HOLIDAY INN Trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or of a product or service on the Respondent's website (See, Inter-Continental Hotels Corporation v. lin qing feng,WIPO Case No. D2013-1639).
6.19 As numerous decisions under the Policy have made clear, creating a website that appears to be a website for a complainant, as the Respondent has done in the instant case, is "likely fraudulent" and "indicates an intent to deceive or, at a minimum, act in bad faith with the intent for commercial gain." (See, DocuSign, Inc. v. Traffic CPMiPV, Maria Carter,WIPO Case No. D2010-0344).
6.20 In this scenario, there can be no doubt that the Respondent knew of the Complainant's HOLIDAY INN Trademark when it registered the Disputed Domain Name, leading to evidence of bad faith. As set forth above, the HOLIDAY INN Trademark is a well-known, internationally recognized mark registered in many countries or geographic regions worldwide, including in India, and the Respondent's use of the Disputed Domain Name is obviously intended to create an association with the Complainant. (See, Starwood Hotels & Resorts Worldwide, Inc. and Westin Hotel Management, L.P. v. M On,WIPO Case No. D2012-1009).
6.21 Moreover, in light of this long history of the Complainant's trademarks and the Complainant's significant international presence and brand recognition, "[i]t is likely that the Respondent knew of the Complainant's mark, and has sought to obtain a commercial benefit by attracting Internet users based on that confusion." (See, Western Union Holdings, Inc. v. Manuel Rodriguez,WIPO Case No. D2006-0850).
6.22 Under these circumstances, the Panel finds that the Complainant has presented evidence to satisfy its burden of proof as to whether the Respondent has registered and is using the Disputed Domain Name in bad faith.
6.23 The Panel therefore finds that paragraph 4(a)(iii) of the Policy has been satisfied. 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.
José Pio Tamassia Santos
Sole Panelist
Date: January 4, 2016
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