WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Six Continents PLC v. Party Night Inc.
Case No. D2003-0019
1. The Parties
The Complainant is Six Continents PLC of London, United Kingdom, represented by Mark L. Seigel, Esq. with the lawfirm of Needle & Rosenberg P.C., Atlanta, Georgia, United States of America.
The Respondent is Party Night Inc., Amsterdam, The Netherlands.
2. The Domain Name and Registrar
The disputed domain name <sixcontinentalhotels.com> is registered with Key-Systems GmbH.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 9, 2003, at which date the Center transmitted by e-mail to Key-Systems GmbH d/b/a domaindoscount24.com a request for registrar verification in connection with the domain name at issue. On the same day Key-Systems GmbH verified that the Respondent is listed as the registrant and provided the contact details for the administrative, billing, and technical contact.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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 the Respondent of the Complaint, and the proceedings commenced on January 14, 2003. In accordance with the Rules, Paragraph 5(a), the due date for Response was February 3, 2003. The Respondent did not submit a Response. Accordingly, the Center notified the Respondentís default on February 5, 2003.
The Center appointed Anders Janson as the sole Panelist in this matter on February 20, 2003. 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.
The Panel independently determines and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the applicable requirements.
The Panel has issued its Decision based on the Complaint, the Policy, the Rules, and the WIPO Supplemental Rules.
4. Factual Background
The Complainant asserted, and provided evidence in support of, the following facts, which the Panel finds established:
The Complainant, through its wholly owned subsidiary Six Continents Hotels, Inc., or through an affiliate, is the franchisor of the famous "HOLIDAY INN" and "HOLIDAY INN EXPRESS" brands, as well as the famous hotel brands "CROWNE PLAZA" and "Staybridge SUITES." An affiliate of Six Continents Hotels Inc also owns, manages, and franchises the "INTERCONTINENTAL" hotel brand globally. Complainant is the owner numerous trade mark registrations, inter alia the following subsisting registrations of, among others, the marks "SIX CONTINENTS CLUB" and "SIX CONTINENTS," covering a wide variety of goods and services.
- SIX CONTINENTS CLUB, Registration No 1726099, registered October 20, 1992; for hotel and restaurant services etc., in the United States.
- SIX CONTINENTS and 6 CONTINENTS, Registration No 2252632, registered November 14, 2000; for hotel services etc, in Britain and Northern Ireland
- SIX CONTINENTS CLUB; Registration No 411229, Registered August 23, 1994; for hotel and restaurant services etc, in Switzerland.
- SIX CONTINENTS; Registration No 44423, registered September 3, 2001; for hotel services etc with the African Intellectual Property Organization.
The Panel notes that the registration dates of all of the above referenced registrations as well as the vast majority of the registration certificates attached to the Complaint, predate the date of registration of the disputed domain name by the Respondent.
Complainant, through Six Continents Hotels Inc. has been using the mark Six Continents Hotels since at least as early as July 2001, in connection with its hotel franchising service. Six Continent Hotels Inc. owns ninety global Top Level Domain names and in total two hundred domain names featuring "SIX CONTINENTS," including <sixcontinentshotels.com> <sixcontinentshotels.org> and <sixcontinentshotels.net>.
The Respondent is a corporation with a stated owner and administrative contact at one and the same address in Amsterdam, The Netherlands.
The disputed domain name <sixcontinentalhotels.com> was registered by the Respondent with Key-Systems GmbH on April 6, 2002.
Complainant alleges that the domain name <sixcontinentalhotels.com> resolves to a website at the URL "www.hanky-panky-college.com." Furthermore, the Complainant alleges that The Respondent is affiliated with a number of adult-oriented and sexually explicit web sites.
The Panel has tried and failed to verify these contentions. When typing the domain name <sixcontinentalhotels.com>, no server could be found. A WHOIS search indicates that the domain name <sixcontinentalhotels.com> was registered by Party Night Inc. as alleged by the Complainant. A WHOIS search of "www.hanky-panky-college.com,"" www.myfreelivewebcam.com" and "http://yes-yes-yes.com," all sites by the Complainant proven to be gambling sites and / or with explicit sexual content and allegedly connected to the disputed domain name <sixcontinentalhotels.com>, indicated different registrants, with no apparent connection to Party Night Inc. The Panel finds however, in view of the above and the fact that the Respondent has not submitted a Response, that the Complainants allegations that the domain name <sixcontinentalhotels.com> did resolve to sexually explicit adult websites and / or gambling sites is undisputed and shall be considered established in this matter.
5. Partiesí Contentions
The Complainant contends that:
- the disputed domain name is identical and confusingly similar to a trademark or service mark in which the Complainant has rights;
- the Respondent has no rights or legitimate interests in respect of the disputed domain name;
- the disputed domain name was registered and is being used in bad faith; and
- the disputed domain name <sixcontinentalhotels.com> should be transferred to the Complainant.
Respondent has not submitted any Response and is to be considered in default.
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name registered by the Respondent 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 respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The domain name at issue is <sixcontinentalhotels.com>. Complainant is the holder of a large number of registered trademarks such as inter alia "SIX CONTINENTS CLUB" and SIX CONTINENT in a large number of countries. The Complainant owns two hundred domain names featuring "SIX CONTINENTS," such as <sixcontinentshotel.com>. The Complainant is contending the Respondent is attempting to "typo-squat" on Complainantís mark. The Complainant establishes that the only difference between Complainantís mark "six continent" and the disputed domain name is the interchanging the ending Ė "s" for Ė"al."
The Respondent does not contest this supposition.
The Panel considers <sixcontinentalhotels.com> confusingly similar to <sixcontinentshotels.com> and the mark "SIX CONTINENTS" owned by the Complainant, which the Panel finds is internationally well-known and recognizable, by virtue of the Complainants many trademark registrations. The Panel therefore holds that the Complainant has established element (i) of the Policy's Paragraph 4(a).
B. Rights or Legitimate Interests
The Respondent has not filed a Response in accordance with the Rules, Paragraph 5. In those circumstances, when Respondent clearly has no obvious connection with the disputed domain name, the mere assertion from Complainant that Respondent has no right or legitimate interest is enough to shift the burden of proof to the Respondent to demonstrate that such right and legitimate interest exist.
The Respondent has not demonstrated or argued that it used or prepared to use the disputed domain name in connection with a bona fide offering of goods or services or that any other right or legitimate interest exists. Registration of a domain name in itself does not establish rights or legitimate interests for purposes of Paragraph 4(a)(ii) of the Policy.
In conclusion, the Respondent has not presented any evidence of rights or legitimate interests in using the disputed domain name and has no obvious connection to it. The Panel therefore holds that the Complainant has established element (ii) of the Policy's Paragraph 4(a).
C. Registered and Used in Bad Faith
Finally the Panel has to consider the question of the disputed domain name having been registered and used in "bad faith."
Paragraph 4(b) states four (non-exclusive) circumstances which, if found to be present, are deemed to provide evidence of bad faith in registering and using the domain name. Paragraph 4(b)(iv) states that a circumstance indicating bad faith is using a domain to intentionally attempt to attract, for commercial gain, Internet users to your web-site or other on-line location, by creating a likelihood of confusion with Complainantís mark as to the source, sponsorship, affiliation or endorsement of your web site or location or of a product or service on your web site or location.
The Panel has established that the mark "SIX CONTINENTS" is recognizable and internationally well-known. The Panel considers it highly unlikely that the Respondent by coincidence has registered the disputed domain name, which is different from the Complainantís own website <sixcontinentshotels.com> by two letters, "-al" instead of "-s" as the ending of the Complainantís mark "SIX CONTINENTS." Furthermore, the Respondent has not presented any reasons, evidence or arguments of a legitimate interest in using the disputed domain name. There are no obvious reasons for the Respondent to have a legitimate use of the domain name. As has been established above, the only use of the domain name seems to have been to direct visitors to other websites with explicit sexual content and / or gambling sites.
These sites, to which the domain name resolves, have no apparent connection to the Respondent. This is however of little relevance as to the Respondentís legitimate interests in using the domain name. As other panels have concluded before, there is a well-known practice by which website owners can gain commercially by providing links to pornographic websites even though the owner does not actually operate the pornographic website.
The Panel therefore concludes that the Complainant has proven that the Respondent was acting in bad faith pursuant to Paragraph 4(a)(iii) of the Policy.
In view of the circumstances and facts discussed above, the Panel decides that the disputed domain name is identical and confusingly similar to the registered trademark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the domain name, and that the domain name has been registered and is being used in bad faith.
Consequently, the Panel decides that the domain name <sixcontinentalhotels.com> shall be transferred to the Complainant.
Dated: March 6, 2003