1.1 The Complainant is Six Continents Hotels, Inc. of Atlanta, Georgia, United States of America (“United States”), represented by The GigaLaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States.
1.2 The Respondent is WhoisSecure of Los Angeles, California, United States / Dickson White of Biyala, Egypt. 2. The Domain Name and Registrar
2.1 The disputed domain name (the “Domain Name”) is registered with OwnRegistrar, Inc. (the “Registrar”). The first letter in the Domain Name is a lower case “L” and not a capital “i”. 3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 16, 2019. On January 16, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 17, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name that differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 17, 2019, 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 January 17, 2019.
3.2 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”).
3.3 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 18, 2019. In accordance with the Rules, paragraph 5, the due date for Response was February 7, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 8, 2019.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on February 14, 2019. 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 forms part of the Intercontinental Hotels Group (“IHG”). IHG is one of the world’s largest hotel groups with hotels in nearly 100 countries. It is responsible for hotels operating under various brands. One of these is “Hotel Indigo”, which is marketed as an “upscale boutique brand”. The first Hotel Indigo hotel opened in Atlanta in October 2004, and there are currently 94 Hotel Indigo hotels worldwide.
4.2 The Complainant is the owner of numerous trade marks around the world that incorporate or comprise the words “Hotel Indigo”. They include United States registered trade mark no 2,953,309 for the word mark HOTEL INDIGO registered on May 17, 2005, in class 43 in respect of “Hotel Services”.
4.3 The Complainant operates a website for its hotels under the HOTEL INDIGO brand using the domain name (which is registered in the name of another company in the IHG Group).
4.4 The Domain Name was registered on December 21, 2018. It was registered in the name of the “privacy service” “WhoisSecure”.
4.5 After registration, the Domain Name was used in furtherance of an employment related and identity-theft scam. The scam operated by sending emails that purported to come from the “management” of Hotel Indigo Atlanta to job applicants. This email invited the job applicant to attend an “interview online” and to click on a weblink. If that weblink was clicked on, it would take the Internet user to a web page operating from the Domain Name bearing the Hotel Indigo logo and displaying an “Applicant Information” form that sought detailed personal information from the applicant.
4.6 The information provided by the Registrar for the underlying registrant appears to identify an individual with an address in Egypt. Given the use made of the Domain Name, it is questionable whether these details are accurate and/or whether the person identified exists. 5. Parties’ Contentions A. Complainant
5.1 The Complainant describes its business and marks and the use made of the Domain Name. It asserts that the Domain Name essentially comprises a misspelling of the word “indigo” with the adoption of a lower case “L” that is designed to be misread as the letter “i”, combined with the words “world” and “recruitments” and the generic Top-Level Domain (“gTLD”) “.com”. Given this, it contends that the Complainant’s registered trade marks are recognisable in the Domain Name and that, as set out in section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), this is sufficient for a finding of confusing similarity. The content of the website operating from the Domain Name and in particular the use of the Complainant’s logo on that website is also said to reinforce such a finding as set out in section 1.7 of the WIPO Overview 3.0.
5.2 The Complainant also maintains that the use made of the Domain Name demonstrates that the Respondent has no rights or legitimate interests in the Domain Name and that the Domain Name was registered and used in bad faith. So far as bad faith is concerned, it contends that such activity falls within the scope of paragraph 4(b)(iii) and (iv) of the Policy (citing Pancil, LLC v. Jucco Holdings, WIPO Case No. D2006-0676).
5.3 In its Amended Complaint the Complainant also contends that the change in registrant details following the filing of the Complaint constitutes cyberflight in violation of paragraph 8(a) of the Policy and that this provides further evidence of bad faith. B. Respondent
5.4 The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent the Panel from determining the dispute based upon the Complaint, notwithstanding the failure of any Respondent to lodge a Response.
6.2 To succeed in these proceedings the Complainant must make out its case in all respects under paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and
(iii) the Domain Name has been registered and is being used in bad faith (paragraph 4(a)(iii)).
6.3 However, under paragraph 14(b) 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”.
6.4 Before the Panel considers these requirements it is convenient to briefly address the Complainant’s allegations of cyberflight. It has now become a common practice for registrars to offer “privacy services” that mask the identity of the underlying registrant of domain names in the publically available WhoIs registrar, but to disclose that underlying registrant in response to a verification request from a UDRP provider. Frequently as part of that process the publically displayed WhoIs details for the Domain Name will also change to reveal the underlying registrant’s identity.
6.5 The Policy was prepared before privacy services were prevalent and the wording of the Policy and the Rules at times does not fit well with their operation. One example of this is the tension between a change in WhoIs details in response to a verification request and the wording of paragraph 8(a) of the Policy, which prohibits a transfer of registration (albeit with that prohibition being directed to the registrant rather than the registrar).
6.6 It is not clear to the Panel whether the Complainant’s allegations of cyberflight are said to arise out of the process of disclosure by the Registrar in this case or whether there is an allegation of a more fundamental attempted change in registration. However, it is not necessary to consider these issues further, given that there is otherwise clear and ample evidence of bad faith in this case. A. Identical or Confusingly Similar
6.7 As has already been stated, the Complainant is the owner of registered trade mark rights in the word mark HOTEL INDIGO in respect of hotel services. “Indigo” is the dominant element of that mark. The Panel also accepts that the only sensible reading of the Domain Name is as the words “indigo”, “world”, and “recruitments” (together with the “.com” gTLD), but with a lower case letter “L” being used to look like an upper case “i” in the word “indigo”. Given this the Panel also accepts that the word “indigo” is recognisable in the Domain Name and that the Domain Name is therefore “confusingly similar” (as that term is understood under the Policy) to a trade mark in which the Complainant has rights.
6.8 Further, were there any doubt on this issue (which the Panel does not consider there to be), the use made of the Domain Name and in particular the content of the website operating from the Domain Name, makes it clear that an association between the Domain Name and the Complainant is intended. This is a factor that can be taken into account when considering the objective question of whether the Domain Name and relevant trade mark are confusingly similar.
6.9 In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests and Registered and Used in Bad Faith
6.10 It is usual for panels under the Policy to consider the issues of rights or legitimate interests and registration and use in bad faith in turn. However, in a case such as this it is more convenient to consider those issues together.
6.6 The Panel accepts that the Domain Name has been registered and used with the intention of furthering a fraudulent scheme whereby the underlying controller of the Domain Name has sought to impersonate the Complainant and that this has been done in order to try and deceive potential applicants for jobs with the Complainant. The evidence that the Complainant has provided in this respect, as to how the Domain Name has actually been used, is compelling. There is also the form of the Domain Name itself, which appears deliberately designed to trick an Internet user into believing that the Domain Name is associated with the Complainant, when it is not.
6.7 There is no right or legitimate interest in holding a domain name for the purpose of furtherance of a fraud through impersonation. Further, the registration and use of a domain name for such a purposes involves registration and use in bad faith (see, for example, Vestey Group Limited v. George Collins,WIPO Case No. D2008-1308).
6.8 The Complainant contends that in this case the activity falls within the scope of paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. Often the use of a domain name to further a fraud is not easily categorised as falling strictly within the scope of one or other of the examples of circumstances indicating bad faith set out in paragraph 4(b). Nevertheless, the registration and subsequent use of a domain name for such a purpose are clear-cut examples of bad faith registration and use.
6.9 Further and in any event, in the particular circumstances of this case, paragraph 4(b)(iv) is clearly satisfied in that the Domain Name has also been used for a website that fraudulently impersonates the Complainant.
6.9 In the circumstances, the Panel has no hesitation in finding that the Complainant has made out the requirements of paragraphs 4(a)(ii) and 4(a)(iii) of the Policy. 7. Decision
7.1 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.
Matthew S. Harris
Sole Panelist
Date: February 22, 2019
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