The Complainant is Six Continents Hotels, Inc., United States of America (“United States” or “USA”), represented by The GigaLaw, Douglas M. Isenberg, Attorney at Law, LLC, United States.
The Respondent is WhoisSecure, WhoisSecure, United States / Yung Mon, Egypt. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 13, 2019. On December 13, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 14, 2019, 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 16, 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 December 16, 2019. 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 17, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 6, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 7, 2020. The Center appointed Theda König Horowicz as the sole panelist in this matter on January 21, 2020. 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 is a Delaware corporation with its principal place of business in Atlanta, Georgia (United States). The Complainant is known as InterContinental Hotels Group (“IHG”), one of the largest hotel groups in the world. It owns a portfolio of well-recognized hotel brands including Hotel Indigo, a chain of upscale boutique hotels which are established in many countries and cities, notably in New York City, United States. The Complainant’s first Hotel Indigo was opened in Atlanta, Georgia (USA) in October 2004. It later expanded to Europe, Latin America, and China. The Complainant and its affiliated companies own several trademark registrations worldwide for HOTEL INDIGO, notably in the United States where the following marks are registered: - HOTEL INDIGO No. 2953309, in class 43, registered on May 17, 2005; - HOTEL INDIGO (and design) No. 3424795, in class 43, registered on May 6, 2008; - HOTEL INDIGO No. 3424796, in class 43, registered on May 6, 2008; - HOTEL INDIGO (and design) No. 3929099, in class 43, registered on March 8, 2011; - HOTEL INDIGO (and design) No. 3934936, in class 43, of March 22, 2011. The Complainant through one of its affiliated companies also owns the domain name The disputed domain name was registered on November 15, 2019. It is linked to a webpage entitled “Hotel Indigo” along with the logo of a conch shell, highly similar to the conch shell logo of the Complainant. On the webpage appears a form destined to be filled out by Internet users who wish to apply for an employment. No other sections or information on “Hotel Indigo” are available. 5. Parties’ Contentions A. Complainant The Complainant alleges to have rights in and to the HOTEL INDIGO trademark in many countries including the United States. The disputed domain name contains the dominant portion of the HOTEL INDIGO trademark, merely adding the letter “s” to make the word “hotel” plural, the city name “New York”, and the word “recruitment”. None of these inclusions alleviate confusing similarity; they actually increase it from the Complainant’s perspective, as the addition of geographic and/or descriptive terms to the dominant portion of a domain name does not prevent confusing similarity according to most decisions cited in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), on this topic. The Complainant further underlines that the Respondent’s website using the disputed domain name contains the HOTEL INDIGO logo in its entirety. Finally, “the overall impression of the designation” of the disputed domain name is one of “being connected to the trademark of the Complainant”. Accordingly, the Complainant is of the opinion that the disputed domain name is confusingly similar to the HOTEL INDIGO trademark. The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name, notably considering that: - The Respondent uses the disputed domain name to seek detailed personal information from Internet users. Using the disputed domain name in connection with an employment/phishing scam cannot create a bona fide offering of goods and services under the Policy. - The Complainant has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the HOTEL INDIGO trademark in any manner. - 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. The Complainant finally alleges that the disputed domain name should be considered as having been registered and used in bad faith by the Respondent since it is used in connection with a web page bearing the HOTEL INDIGO logo and displaying an applicant information form that seeks detailed personal information from the applicant. The use of the disputed domain name in connection with an employment/phishing scam constitutes bad faith, especially when targeting a hotel company. Given the worldwide established rights of the Complainant in its trademark and the Complainant’s significant international presence and brand recognition, the Complainant concludes that the Respondent obviously knew of the Complainant’s mark and sought to obtain commercial benefit by attracting Internet users based on that confusion. Accordingly, the disputed domain name was registered and is being used in bad faith. In the frame of its allegations, the Complainant generally refers to a decision rendered by a previous UDRP panel also involving a disputed domain name confusingly similar to the HOTEL INDIGO trademark that was used in the same manner as the disputed domain name as in this proceeding Six Continents Hotels, Inc. v. WhoisSecure / Dickson White,WIPO Case No. D2019-0087 (transfer of The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under the Policy, in order to prevail, a complainant must prove the following three elements for obtaining the transfer of a domain name: (i) that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) that the respondent has no rights or legitimate interests in the domain name; and (iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has shown to have trademark rights in many countries including the United States over the name HOTEL INDIGO in relation to hotel services. The trademark HOTEL INDIGO is reproduced in its entirety and constitutes the dominant part of the disputed domain name. The mere addition in the disputed domain name of the letter “s” in the term “hotel” to render it plural and the inclusion of the city “New York” and the dictionary word “recruitment” does not prevent a finding of confusing similarity. The Panel therefore concludes that the disputed domain name is confusingly similar to the Complainant’s marks. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in the use of a domain name. The list includes: (1) the use of the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) the making of a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. The Panel agrees with the Complainant’s point of view that the disputed domain name has been registered and used with the intention to fraudulently seek detailed information from Internet users. Furthermore, the Complainant never authorized the Respondent to use the disputed domain name which contains its protected trademark HOTEL INDIGO. Furthermore, nothing in the case file indicates that the Respondent is known by the disputed domain name. The Complainant has therefore made a prima facie case showing that the Respondent has no rights or legitimate interests in the disputed domain name and the burden of production shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights or legitimate interests in the disputed domain name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110. The Respondent submitted no reply to the case against it. As already stated, no evidence is contained in the case file which would evidence that the Respondent has rights or legitimate interests in the disputed domain name, in particular that it would be commonly known by the disputed domain name. Moreover, the use of a domain name for illegal activity (e.g. phishing, impersonation, or other types of fraud) can never confer rights or legitimate interests on a respondent. See section 2.13 of the WIPO Overview 3.0. The Panel thus finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The third element requires the complainant to prove that the respondent registered and is using the disputed domain name in bad faith. See the Policy, paragraph 4(a)(iii). Paragraph 4(b) of the Policy enumerates non-exhaustive circumstances in which evidence of bad faith registration and use can be found: (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 that complainant, for valuable consideration in excess of respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) 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 he has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to his 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 his website or location or of a product or service on his website or location. The Complainant evidenced that its HOTEL INDIGO marks have been registered since several years in many countries including the United States. Furthermore, the Complainant has shown that its trademark is widely used through a hotel chain bearing the said name and that it has a strong Internet presence through its official website “www.hotelindigo.com”. The Complainant thus used its HOTEL INDIGO mark extensively in relation to hotel services. Consequently, the Panel is of the opinion that the Respondent must have known the HOTEL INDIGO marks when registering the disputed domain name and when linking it to a webpage bearing said mark in its entirety with the conch shell logo of the Complainant and using the exact same blue color than the Complainant uses for its HOTEL INDIGO (and design) trademark. Furthermore, there can be no good faith and fair use of the disputed domain name since it is used for scam/phishing purposes. Considering the above-mentioned circumstances, the Panel finds that the Complainant has also satisfied the requirements of 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 Theda König Horowicz
Sole Panelist
Date: February 5, 2020
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