WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION La Quinta Worldwide, L.L.C. v. LCH - CBA / Niphuad Molend Case No. DTV2009-0007 1. The Parties
The Complainant is La Quinta Worldwide, L.L.C., of Las Vegas, Nevada, United States of America represented by Lydecker, Lee, Behar, Berga & deZayas, LLC, United States of America.
The Respondent is LCH - CBA / Niphuad Molend, of Salem, Oregon, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 13, 2009. On August 14, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On August 17, 2009, eNom 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 Complainant on August 20, 2009, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on August 25, 2009. In addition to filing an amendment to the Complaint, Complainant requested a suspension of ten days in which to discuss settlement with Respondent. Complainant requested an extension of the suspension on September 3, 2009. On September 18, 2009, the Center received Complainant's request to re-institute the proceedings. 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 Respondent of the Complaint, and the proceedings commenced on September 21, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was October 11, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on October 12, 2009.
The Center appointed Mark Partridge as the sole panelist in this matter on October 26, 2009. 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.
On November 11, 2009, the Panel extended the due date for the decision to November 16, 2009, due to exceptional circumstances. 4. Factual Background
Complainant owns and operates hotels under the name and mark LA QUINTA. It also owns many U.S. Trademark Registrations for various forms of the LA QUINTA mark, including Reg. No. 875,802, dated August 26, 1969, for the mark LA QUINTA.
The domain name was registered on July 21, 2007. Complainant sent a letter of objection to the initial registrant of the mark on June 16, 2009. The domain name was transferred to the current registrant on August 5, 2009. The domain name leads to a web page with links to sponsored listings for Complainant and competitors. 5. Parties' Contentions A. Complainant
Complainant contends that the domain name is confusingly similar or identical in material part to its trademark; that Respondent lacks any rights or legitimate interests in the domain name; and that the domain name was registered and used in bad faith for a parking page with pay-per-click sponsored links. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name is identical in material part to a trademark owned and used by Complainant. The addition of the country -code top- level domain (ccTLD) designation “.tv” does not serve to distinguish the disputed domain name from Complainant's marks since “.tv” is a common Internet address identifier that is not specifically associated with Respondent. World Wrestling Federation Entertainment, Inc. v. Michael Rapuano aka Bobby Rogers,WIPO Case No. DTV2001-0010. The Panel therefore finds that the disputed domain name is identical to a mark in which Complainant has rights. B. Rights or Legitimate Interests
Generally speaking, once a complainant makes a prima facie showing that a respondent has no rights or legitimate interests in a domain name based on available evidence, the respondent must come forward with contrary evidence, as stated in Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110:
“While the overall burden of proof is on Complainant, the element of possible rights or legitimate interests of Respondent in the disputed domain name involves Complainant proving matters, which are peculiarly within the knowledge of Respondent. It involves the Complaint in the often impossible task of proving the negative. This should, as indicated correctly inWIPO Case No. D2001-0121, Julian Barnes v. Old Barn Studios, be approached as follows: Complainant makes the allegation and puts forward what he can in support (e.g. he has rights to the name, Respondent has no rights to the name of which he is aware, he has not given any permission to Respondent). Unless the allegation is manifestly misconceived, Respondent has to demonstrate his rights or legitimate interests in respect of the domain name under paragraph 4(c) of the Policy.”
In addition, the Panel should consider the effect of Respondent's default. See Paragraph 14 of the Rules states:
“(a) In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the complaint.
(b) If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.”
When applying this provision, panelists have generally concluded that the respondent's default does not automatically result in a decision in favor of the complainant. Nevertheless, a panel may draw negative inferences from the respondent's default, paragraph 4 of the UDRP, particularly with respect to those issues uniquely in the knowledge and possession of the respondent.
In this case we are dealing with an unusual name connected with a specific industry. The record provides no basis for concluding that Respondent has rights or legitimate interests in the disputed domain name. Giving consideration to the principles stated above, the Panel therefore concludes that Complainant has satisfied its burden on this element of its claim.
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Under the Policy, Complainant has the burden of proving that the disputed domain name was registered and used in bad faith. The circumstances given in the Policy as evidence of bad faith registration and use of a domain name include, but are not limited to:
(i) respondent has sought to sell the domain name for profit;
(ii) respondent engaged in a pattern of conduct to prevent complainant from using its mark as a domain name;
(iii) respondent is seeking to disrupt the business of a competitor; or
(iv) respondent is deliberately seeking to commercially gain from the confusion of Internet users. (Paragraph 4(b) of the Policy).
Here, the disputed domain name is identical to Complainant's trademark, and seems uniquely connected with Complainant. There is no apparent plausible basis for innocent adoption of the name by Respondent. Moreover, the WHOIS information for Respondent indicates that Respondent resides in the United States, where Complainant holds numerous trademark registrations. Respondent at least has constructive knowledge as a matter of law of Complainant's trademarks, and probably has actual knowledge given the scope of Complainant's advertising. Thus, it appears more likely than not that Respondent obtained the disputed domain name to exploit the appearance of a connection with Complainant for commercial gain. Acquisition in bad faith of a previously registered domain name has been held to satisfy the registration element of a UDRP claim.
Respondent's web site linked to the disputed domain name directs users to Complainant's web site, without permission or license from Complainant, as well as Complainant's competitors' web sites, such as Holiday Inn Express. (See Complainant's Annex 7). Internet users who are seeking Complainant's site or services sold under “La Quinta” are likely to be mislead to Respondent's site and be directed to competitors' web sites via sponsored links.
As the owner of the disputed domain name, Respondent is responsible for its content regardless of whether the owner or a third party profits from the placement of links on the website. See, MasterCard International Incorporated v. Capital Conservator Group LLC, WIPO, Case No. D2009-1051 (Ordering transfer of 6 domains with GoD parking pages transferred to the complainant): “UDRP panels have recognized that it is bad faith for a respondent to intend to attract Internet users ‘for commercial gain' whether the gain is derived by the respondent itself or a third party advertiser.”
Accordingly, the Panel finds that the disputed domain name was registered and 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 domain name be transferred to the Complainant.
Mark Partridge
Sole Panelist
Dated: November 18, 2009
Full & Egal Universal Law Academy