WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Wyndham International, Inc. and Wyndham Hotels and Resorts v. Ameriasa and Rob Smith
Case No. D2002-0430
1. The Parties
Wyndham International, Inc. and Wyndham Hotels and Resorts ("Complainants"), 1950 Stemmons Freeway, Suite 6001, Dallas, Texas, 75207, United States of America.
The Respondents are Ameriasa and Rob Smith at Tilburgseweg 105 Poppel, Ravels, 2382, Belgium.
2. Domain Name and Registrar
The domain name at issue is <wyndham-hotels.org>. The registrar is Intercosmos Media Group, Inc., d/b/a directNIC.com, 650 Poydras Street, Suite 2311, New Orleans, Louisiana, 70130, United States of America.
3. Procedural History
The first complaint was received by the WIPO Arbitration and Mediation Center (the "Center") by email on May 3, 2002, and in hardcopy on May 28, 2002. The Center has verified that the first complaint submitted satisfies the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel (the "Panel") is satisfied that this is the case.
On May 10, 2002, the Center sent an Acknowledgement of Receipt of Complaint to the Complainants. Also, on May 10, 2002, the Center sent to the registrar a request for verification of registration data. On the same day, the registrar notifies the Center that registration of <wyndham-hotels.org> (the "domain name") was transferred from TRN d/b/a Lowest-Airfare.com ("TRN") to Sepia on May 4, 2002. On May 22, 2002, the registration of the domain name was transferred to Ameriasa, one of the Respondents.
On May 23, 2002, the Center sent to the Complainants a notification of deficiency. On May 24, 2002, Complainants submitted a supplemental amended complaint (the "Complaint") identifying the Respondents as the current holders of the domain name.
Having verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for the Policy, and the Supplemental Rules for the Policy (the "Supplemental Rules"), the Center on May 29, 2002, sent to the Respondents, with a copy to the Complainants, the Complaint and a Notification of Complaint and Commencement of Administrative Proceeding.
The Respondents did not submit a Response to the Complaint. On June 21, 2002, the Center sent Notification of Respondentsí Default by email to <email@example.com> and to <firstname.lastname@example.org>. As noted below, Respondents on July 7, 2002, sent an informal email response.
The Center appointed the single member administrative panel (the "Panel"). The undersigned Panelist, Maxim H. Waldbaum, submitted a Statement of Acceptance and Declaration of Impartiality and Independence. The Panel was properly constituted. The Center sent the parties the Notification of Appointment of Administrative Panel on July 3, 2002.
No further submissions were received by the Center or the Panel, as a consequence of which the original date scheduled for the issuance of the Panelís decision was July 17, 2002.
4. Factual Background
Complainants are internationally recognized enterprises with a presence in all segments of the hospitality industry. Complainants and their affiliate companies have used and invested in WYNDHAM service marks and trademarks since 1974. The international enterprise is based in Dallas. Complainants and their affiliate companies own, lease, manage and franchises hotels and resorts throughout the United States, Mexico, the Caribbean and Europe. Complainants have registered and own over 400 service marks and trademarks that incorporate the name WYNDHAM, including WYNDHAM and WYNDHAM HOTELS & RESORTS. Complainants have also registered a number of domain names that incorporate the WYNDHAM mark such as <wyndhamhotels.biz> and <wyndhamhotels.info>. The Complainantsí principal internet website is located at <wyndham.com>.
Complainantsí mark WYNDHAM HOTELS & RESORTS (hereinafter "WYNDHAM HOTELS") is a federally registered trademark in the United States, U.S. Registration No. 2,096,650. The records of the United States Patent and Trademark Office indicate that this registration was issued on September 16, 1997.
The Complainants have not granted any license or other authority to the Respondents to use the domain name.
On April 22, 2002, Complainants contacted TRN and advised that registration of <wyndham-hotels.org> was a violation of the WYNDHAM and WYNDHAM HOTELS marks and that TRN should cease all use of the domain name.
The domain name was registered to TRN d/b/a Lowest-Airfare.com Travel Reservations Network in June 2001, and administered by Marcel Stillekens. On May 4, 2002, the domain name registration was transferred to Sepia and administered by Patricia de la Torre. On May 22, 2002, the domain name registration was transferred to the Respondents and administered by Rob Smith.
Even though the domain name registration has been transferred to various entities it has always connected consumers to Lowest-Airfare.Com. When internet users type in <wyndham-hotels.org>, they are immediately connected with Lowest-Airfares.com. The Respondentsí website provides a broad range of travel related services, such as air fares, hotel accommodations, car rental and scenic tours.
5. Partiesí Contentions
Complainants contend as follows:
(i.)The domain name registered and used by Respondents is identical to the Complainantsí WYNDHAM and WYNDHAM HOTELS marks.
(ii.)Respondentsí use of the domain name is illegitimate because it appropriates and profits from Complainantsí goodwill, misleads customers and tarnishes the Complainantsí names.
(iii.)The domain name is being used in bad faith because Respondents were well aware of the existence of the Complainants and their marks, WYNDHAM and WYNDHAM HOTELS.
Complainants and their affiliated companies own over four hundred service mark and trademarks that incorporate the name WYNDHAM. The company has used the marks and names in the hospitality industry since 1974. The enterprise has promoted and provided services worldwide and has been honored as an industry leader. The reputation that Complainants have cultivated as well as the favorable media coverage have given the Complainantsí service marks and trademarks significant "goodwill" value.
Registration and use of the domain name <wyndham-hotels.org> by Respondents appropriate Complainantsí goodwill and adversely affect the commercial interests of Complainants. Respondents are aware of Complainantsí marks and selected an identical name so as to intentionally attract Complainantsí actual and potential customers. The Respondents use the domain name to direct Complainantsí customers to Lowest-Airfare.org, a discount travel service. The Complainants submit that once the user arrives at the <lowest-airfares.com> website, they are misguided by what appear to be links to Complainantsí services but rather provide a list of hotel options, including those of Complainantsí direct competitors.
Respondentsí use of the domain name evidences a conscious attempt to profit and possible actual profit from the appropriation of Complainantsí marks and goodwill.
Respondents failed to submit a formal Response to the Center.
On July 7, 2002, Rob Smith sent an informal response to WIPO. Rob Smithís email explains the Respondentsí position as follows:
"We registered a domain name that was available. We don't understand that big companies like you didn't register the domain name yourself for just $15 We think wrong management and organization, to make a lot of costs now to get the domain name back. Also we use the name to get reservations for your company, so we help and promote your company in a good way!!"
6. Discussion and Findings
According to Paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondents have no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
B. Identical or Confusingly Similar
The marks WYNDHAM and WYNDHAM HOTELS are registered trademarks in the United States. The records of the United States Patent and Trademark Office indicate that Complainants are the assignees of these registrations.
The Panel finds that the marks WYNDHAM and WYNDHAM HOTELS are internationally well-known and are especially familiar to those involved in Respondentsí industry.
It is evident that Respondents are aware of the WYNDHAM and WYNDHAM HOTELS trademarks and has registered <wyndham-hotels.org>, a virtually identical domain name. The Respondentsí addition of a dash between WYNDHAM and HOTEL is inconsequential, for the purpose of arbitrating this dispute. The use or absence of punctuation marks, such as hyphens and spaces, does not alter the fact that a domain name is confusingly similar to a mark. See Chernow Communications, Inc. v. Jonathon D. Kimball, WIPO Case No. D2000-0119; The Channel Tunnel Group Ltd v. Powell, WIPO Case No. D2000-0038; SeekAmerica Networks, Inc. v. Tariq Masood and Solo Signs, WIPO Case No. D2000-0131; Hewlett-Packard Company v. Cupcake City, Case No. FA0002000093562; InfoSpace.com, Inc. v. Tenenbaum Ofer, WIPO Case No. D2000-0075; EFG Bank European Financial Group SA v. Jacob Foundation, WIPO Case No. D2000-0036; Colgate-Palmolive Company v. Charles Kasinga, Case No. FA0002000094203; AT&T Corp v. WorldclassMedia.com, WIPO Case No. D2000-0553.
Consequently, the Panel is satisfied that the Complainants own the WYNDHAM and WYNDHAM HOTELS marks, the domain name is identical to that mark, and therefore the requirement of Paragraph 4(a)(i) is met.
C. Rights or Legitimate Interests of the Respondents
The Panel finds that Respondents have no rights or legitimate interests in the disputed domain name. Respondents use the domain name to redirect Complainantsí potential and actual consumers to <lowest-airfare.com>, a discount travel service, that competes for a common pool of consumers. Respondents have no legitimate right to appropriate a known brand-name to further the commercial interest of <lowest-airfare.com>.
Therefore, the requirement of Paragraph 4.a(ii) is met.
D. Bad Faith
The Panel finds that Respondents have registered and used the domain name <wyndham-hotels.org> in bad faith.
It is clear to the Panel that <wyndham-hotels.org> is closely associated with the Complainantsí well known trademarks as well as Complainantsí goodwill. Therefore, Respondentsí complete disassociation with the Complainantsí enterprise and intentional use of Complainantsí trademarks for its website can only suggest wrongful confiscation of the trademarks and opportunistic bad faith. See Singapore Airlines Limited v European Travel Network, WIPO Case No. D2000-0641; Singapore Airlines Limited v P&P Servicios de Communication S.L., WIPO Case No. D2000-0643; See also Singapore Airlines Limited v. Hotel Price and Patricia de la Torre, WIPO Case No. D2001-0595. The transfers of registration of the disputed domain name from TRN to Sepia and then to Ameriasa shortly after the filing of the complaint suggest a significant bad faith attempt at evading scrutiny, in both use and registration.
Respondentsí acquisition of multiple domain names also provides grounds for a strong inference of bad faith. Respondents and Respondentsí business associates have registered a number of domain names that are functionally identical to the registered marks of widely known airlines and hotels. See Singapore Airlines Limited v European Travel Network, WIPO Case No. D2000-0641; Singapore Airlines Limited v. Hotel Price and Patricia de la Torre, WIPO Case No. D2001-0595. Additionally, as in the present case, in both of the foregoing cases the consumer use was also immediately connected to the services provided by <lowest-airfares.com>.
The Panel finds that in accordance with Paragraph 4(a)(iii)(iv), the Respondents have intentionally attempted to attract, for commercial gain, Internet users to <lowest-airfare.com> by creating a likelihood of confusion with the Complainantsí mark as to the source, sponsorship, affiliation, or endorsement of Respondentsí website or location of a product or service on Respondentsí website or location. The purposeful behavior of Respondents, as further evidenced by Respondentsí email response admitting that Respondents were using the domain name to attract consumers, almost irrefutably support a bad faith finding.
The Panel, having found that the domain name is identical and confusingly similar to Complainantsí mark, that Respondents have no rights or legitimate interests in the domain name, and the domain name has been registered and is being used in bad faith, finds in favor of the Complainants.
The Panel directs that the domain name <wyndham-hotels.org> be transferred to the Complainants.
Maxim H. Waldbaum
Dated: July 17, 2002