WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Six Continents Hotels, Inc. v. Dkal
Case No. D2003-0244
1. The Parties
The Complainant is Six Continents Hotels, Inc. of Atlanta, Georgia, United States of America, represented by Needle & Rosenberg, PC of United States of America.
The Respondent is Dkal of Barcelona, Spain.
2. The Domain Name and Registrar
The disputed domain name <crowneplazaatlanta.com> is registered with Fabulous.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 27, 2003. On April 1, 2003, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the domain name at issue. On April 2, 2003, Fabulous.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing 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 April 4, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was April 24, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on April 28, 2003.
The Center appointed Wolter Wefers Bettink as the Sole Panelist in this matter on May 26, 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.
4. Factual Background
Complainant is the owner of the trademark CROWNE PLAZA, registered in the United States for hotel services. See e.g. U.S. Trademark Registration No. 1297211 and 2329872.
The domain name <crowneplazaatlanta.com> was registered on February 19, 2003, by Respondent.
5. Applicable Rules
Paragraph 4 (a) of the Policy directs that Complainant must prove each of the following:
(i) the domain name in issue is identical or confusingly similar to Complainantís trademark, and
(ii) the Respondent has no rights or legitimate interest in respect of the domain name, and
(iii) the domain name has been registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets out, by way of example, four circumstances, each of which, if proven, shall be evidence of the registration and use of the domain name in bad faith for the purpose of Paragraph 4(a)(iii) above.
Paragraph 4(c) of the Policy sets out, by way of example, three circumstances, each of which, if proven by Respondent, shall demonstrate Respondentís rights or legitimate interest to the domain name for the purpose of Paragraph 4 (a) (ii) above.
6. Partiesí Contentions
Complainant is the owner and franchisor of numerous global hotel brands, including CROWNE PLAZA, INTERCONTINENTAL and HOLIDAY INN. Complainant is the owner of the U.S. trademark CROWNE PLAZA. Complainant has used its CROWNE PLAZA mark since 1983. There are currently over 190 Crowne Plaza brand hotels and resorts worldwide. As a result of Complainantís exclusive use of its CROWNE PLAZA mark, the mark has developed significant goodwill in the minds of consumers throughout the world.
The grounds for the Complaint are:
(1) the domain name <crowneplazaatlanta.com> is almost identical to Complainantís CROWNE PLAZA mark, consisting of the entire CROWNE PLAZA mark and the geographically descriptive term "Atlanta." The addition of a geographically descriptive term is not sufficient to avoid consumer confusion. On the contrary, the use of anotherís trademark in connection with a geographic term increases the likelihood of consumer confusion.
(2) Complainant states that Respondent has no rights or legitimate interests in respect of the domain name <crowenplazaatlanta.com> as provided in Paragraph 4(a)(ii) and Paragraph 4(c) of the Policy.
Respondent is not affiliated with Complainant, nor has Complainant otherwise authorized Respondent to register the domain name at issue or use any of Complainantís marks. Respondent has not used the domain name at issue in connection with a bona fide offering of goods or services. Respondent has not been, and is not now, commonly known by the domain name at issue. Respondent is not making a legitimate non-commercial or fair use of the domain name at issue. The domain name at issue links up to a generic web portal page that includes links to numerous travel-related websites, many of which are competitors of Complainant.
(3) Complainant states that the domain name <crowneplazaatlanta.com> was registered and is being used in bad faith as provided in Paragraph 4(a)(iii) and Paragraph 4(b) of the Policy. According to Complainant Respondent has intentionally attempted to attract for commercial gain Internet users to Respondentís website by creating a likelihood of confusion with Complainantís mark as to the source, sponsorship, affiliation or endorsement of Respondentís website or of a product of service on Respondentís website. Furthermore, Respondentís use of the domain name disrupts Complainantís business by diverting Internet users to the websites of Complainantís competitors. Respondent appears to be affiliated or otherwise associated with "atlas.com." The domain name at issue hosts a travel portal website that includes links to a number of different pages, including a link for "Hot Travel Deals." If an Internet user clicks on the ĎHot Travel Deals" hyperlink, he is presented with a list of hotel room reservation options. These hotel options are almost entirely comprised of hotels not affiliated with Complainant. This unauthorized and bad faith registration and use of anotherís mark as a domain name constitutes a clear violation of the Policy. Respondent is capitalizing on Complainantís trademark to divert Internet users to websites that compete with Complainant, thereby disrupting Complainantís business.
As Respondent has not submitted a Response to the Center, Complainantís contentions are uncontested.
7. Due process
Where, as in this case, a Respondent does not submit a response and the file does not contain any communication from Respondent, the rules of due process require the Panel to verify as much as possible that Respondent is aware of the present proceedings. The Panel is satisfied, on the basis of the file documents, that this is the case.
A hard copy of Complainant was sent by the WIPO Center to the address of Respondent mentioned under 1 above by courier and by email and to the technical and administrative contact by email.
The Panel therefore assumes that Respondent has received these documents, but has chosen not to respond.
8. Discussion and Findings
Complainant must provide evidence of all elements of Paragraph 4(a) of the Policy. Since the decision to transfer or cancel a domain name may have serious consequences for the domain name holder, the evidence should be sufficient in all respects to support such a decision. The absence of a response from Respondent, as in this case, does not discharge the Panel from its duty to establish that the evidence is sufficient.
A. Trademark rights
Complainant has provided sufficient evidence of its rights to the trademark CROWNE PLAZA, and that it is well-known in many countries.
B. Identical or confusingly similar
The domain name <crowneplazaatlanta.com> is clearly confusingly similar to Complainantís trademark CROWNE PLAZA. The domain name incorporates the trademark CROWNE PLAZA with the generic geographic term "Atlanta" and the suffix ".com" (which indicates that the domain name is registered in the .com gTLD). It is clear that the distinctive trademark CROWNE PLAZA is the most prominent element in this combination, and that may cause the public to think that the domain name is somehow connected with the CROWNE PLAZA trademark. The addition of the city "Atlanta" to Complainantís trademark adds to rather than diminishes the likelihood of confusion. The addition of a place name to a trademark, such as the addition of "Atlanta" to "Crowne Plaza" is a common method for indicating the location of a business enterprise identified by the trademark or service mark. This is even more so in the case of hotels. The domain name <crowneplazaatlanta.com> could well lead the public to believing that it refers to the Crowne Plaza Hotel in Atlanta or at least that Complainant is the sponsor of or associated with the website incorporating the domain name at issue. (See also WIPO Case No. D2000-0477 Wal-Mart Stores Inc. v. Walsucks <walmartcanadasucks.com>, <wal-martcanadasucks.com>, <walmarkuksucks.com>, <walmartpuertorico.com> and <walmartpuertoricosucks.com>; WIPO Case No. D2002-0380 Educational Testing Service v TOEFL USA <toeflusa.com> and WIPO Case No. D2001-1011 Scholastic Inc. v. Sai Tong Ho <chinascholastic.net>.)
C. Rights or Legitimate Interests
Under paragraph 4 (c) of the Policy, Respondent may demonstrate that it has a right or legitimate interest to a domain name for the purpose of Article 4(a)(ii), inter alia, by providing evidence of any of the following circumstances:
"(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate non commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."
There is no prima facie evidence of an own trademark or other right of Respondent to the name "Crowne Plaza Atlanta." Furthermore, Complainant has not given consent, license or other authorization to Respondent for such or any other use or registration of the domain name. The mere fact that Respondent apparently uses the domain name to provide links to hotel and travel related websites is not sufficient for Respondent to claim a legitimate interest (to incorporate Claimantís trademark) in the domain name at issue.
In the light of the foregoing, the Panel finds that Respondent has no rights or legitimate interests to the domain name at issue.
D. Registered and Used in Bad Faith
Paragraph 4(b)(iv) of the Policy states that the following circumstance shall be evidence of the registration and use of a domain name in bad faith:
"(iv) By using the domain name, you have intentionally intended to attract for commercial gain, Internet users to your website or other on-line locations, by creating a likelihood of confusion with Complainantís mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."
Respondent is operating a website under the domain name at issue which is a travel portal website that includes links to a number of different websites. As a business active in the hotel and travel-related services market, Respondent therfore cannot deny that it was aware of the trademark CROWNE PLAZA when registering the domain name <crowneplazaatlanta.com>.
At this website Respondent provides links to websites offering bookings for hotels and other travel-related services, most of which are not a Crowne Plaza Hotel, nor located in Atlanta. Respondent has therefore deliberately included Complainantís trademark in the domain name <crowneplazaatlanta.com> in order to attract business. Respondentís website is clearly intended to attract members of the public wishing to reserve Crowne Plaza hotel rooms in Atlanta, and then offer them other hotels and services. This conduct shows that Respondent has intentionally used the goodwill of Complainantís trademark to create traffic to his website operating under the domain name <crowneplazaatlanta.com>. (See also e.g. WIPO Case No. D2000-0413 Chanel Inc. v. Estco <esteelauder.com> and WIPO Case No. D2002-1132 Six Continents Hotels Inc. v. Ameriasa <holiday-inn-hotels.net>.)
The Panel therefore concludes that there is sufficient evidence that Respondentís registration and use of the domain name <crowneplazaatlanta.com> is in bad faith.
On the basis of the foregoing, the Panel has decided that Complainant has provided the required evidence for the requested order transferring the domain name at issue from Respondent to Complainant. Accordingly, pursuant to Paragraph 4(i) of the Policy, the Panel orders the registration of the domain name <crowneplazaatlanta.com> be transferred to Complainant.
Wolter Wefers Bettink
Dated: June 9, 2003