The Complainant is Inter-Continental Hotels Corporation 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 Amador Holdings Corp, Alex Arrocha of Santiago, Chile / Private Whois / Global Domain Privacy Services Inc of Marbella, Panama. 2. The Domain Name and Registrar
The disputed domain name is registered with URL Solutions, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 15, 2015. On December 16, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 17, 2015, the Registrar 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 the Complainant on December 18, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on December 18, 2015.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 28, 2015. In accordance with the Rules, paragraph 5, the due date for Response was January 18, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 19, 2016.
The Center appointed Kaya Köklü as the sole panelist in this matter on January 22, 2016. 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 belongs to the InterContinental Hotels Group, which is a world leading hotel group. Its brand InterContinental was created in 1948 and is today used for more than 180 hotels worldwide.
The Complainant and its affiliates within the hotel group own a large number of trademark registrations around the world consisting or at least containing the mark INTERCONTINENTAL.
According to the current record, the disputed domain name was first created on June 11, 2004.
The Respondent is composed of a domain name privacy registration service and a company apparently from Chile (both of them jointly referred to as “the Respondent” in the following decision).
The content of the website used in connection with the disputed domain name changed from time to time. According to the provided evidence within the Complaint (Annex 5 and Annex 6), the Respondent particularly used a website linked to the disputed domain name that falsely appears to be associated with the Complainant by using its logo and a survey titled “Intercontinental Hotels Consumer Survey” that offers “exclusive rewards (worth at least $200) to participants”. 5. Parties’ Contentions A. Complainant
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to its INTERCONTINENTAL trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant explicitly states that the Complainant has never granted a permission or license to the Respondent to use its INTERCONTINENTAL trademark. The Complainant further alleges that the Respondent has never used and does apparently not intend to use the disputed domain name in connection with a bona fide, noncommercial offering of goods and services.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. It argues that the Respondent must have been aware of the Complainant’s INTERCONTINENTAL trademark, when registering the disputed domain name in 2004. Furthermore, it is argued that the Respondent is engaged in typosquatting in order to deliberately divert Internet users looking for the Complainant to the Respondent’s website for illegitimate purposes. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 14(a) and 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to the 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 has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110.
It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) and, where appropriate, will decide consistent with the WIPO Overview 2.0. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the INTERCONTINENTAL trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having relevant trademark rights. As evidenced in the Complaint, the Complainant and its affiliates are the owner of a large number of INTERCONTINENTAL trademarks, which enjoy a widespread reputation.
The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s INTERCONTINENTAL trademark. The missing letter “t” in the disputed domain name is an obvious misspelling of the Complainant’s trademark, which does not create a new distinctiveness of the disputed domain name in relation to the Complainant’s registered trademark INTERCONTINENTAL.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
While the burden of proof remains with the complainant, panels have recognized that this would often result in the impossible task of proving a negative, in particular as the evidence needed is often primarily within the knowledge of the respondent. Therefore, the Panel agrees with prior UDRP panels that the complainant is required to make out a prima facie case before the burden of production of evidence shifts to the respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraph 4(a)(ii) and 4(c).
In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s trademark INTERCONTINENTAL in a confusingly similar way within the disputed domain name.
In the absence of a Response by the Respondent, there is no indication in the current record that the Respondent is commonly known by the disputed domain name. Furthermore, the Respondent has failed to demonstrate one of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain name. In particular, the Respondent has failed to show that the disputed domain name has been or is intended to be used in connection with a bona fide offering of goods or services. Using the Complainant’s logo and trademark for an asserted customers survey on the website linked to the disputed domain name is in any case a strong indication that none of the above mentioned circumstances are present in this case.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith.
The Panel is of the opinion that the Respondent intentionally attempted to create a likelihood of confusion among customers and/or to otherwise take advantage of the Complainant’s famous trademark for illegitimate purposes.
The Panel is convinced that the Respondent must have been well-aware of the Complainant’s widely known INTERCONTINENTAL trademark when it registered the disputed domain name in June 2004. At the date of registration of the disputed domain name, the Complainant’s INTERCONTINENTAL trademark was already registered and recognized internationally.
The Panel further believes that the Respondent has chosen an obvious misspelling of the Complainant’s trademark as a domain name in order to intentionally attract and mislead Internet users in their believing that the disputed domain name is somehow officially affiliated by the Complainant. Targeted typosquatting of this nature is in view of the Panel compelling evidence of bad faith.
All in all, the Panel concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy. 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.
Kaya Köklü
Sole Panelist
Date: February 5, 2016
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