Complainant is Greenbrier IA, Inc. of White Sulphur Springs, West Virginia, United States of America, represented by McGuireWoods LLP, United States.
Respondents are Moniker Privacy Services of Pampano Beach, Florida, United States, and Jim Lyons of Deerfield Beach, Florida, United States.
The disputed domain name <hotelgreenbrier.com> is registered with Moniker Online Services, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 6, 2010. On January 7, 2010, the Center transmitted by email to Moniker Online Service, LLC a request for registrar verification in connection with the disputed domain name. On January 8, 2010, Moniker Online Services, LLC. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name that differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on January 11, 2010, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. On February 1, 2010, the proceedings were suspended until March 1, 2010. The proceedings were thereafter reinstituted on March 3, 2010, and on March 5, 2010, the Center sent an email communication to Complainant providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an Amended Complaint on March 11, 2010. The Center verified that the Complaint together with the Amended 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 March 12, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 1, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 6, 2010.
The Center appointed Gregory N. Albright as the sole panelist in this matter on April 19, 2010. 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.
Complainant owns numerous trademark and service mark registrations for THE GREENBRIER mark, including Reg. No. 1776855 for resort hotel and restaurant services, and for the stylized mark GREENBRIER, Reg. No. 1482046 for resort hotel services, issued by the United States Patent & Trademark Office (“USPTO”). The Certificates of Reg. No. 1776855 and No. 1482046 show a claimed first use date of 1929. The disputed domain name was registered on January 25, 2009.
Complainant has established rights in the GREENBRIER mark through its use of the mark and through numerous registrations of the mark.
The disputed domain name <hotelgreenbrier.com> incorporates “hotel” and “greenbrier”. The addition of the term “hotel” does not preclude a finding of confusing similarity. A domain name is “identical or confusingly similar” to a trademark for purposes of the Policy when the domain name includes a trademark, or a confusingly similar approximation, regardless of other terms in the domain name.
In addition, the inclusion of the word “hotel” to the disputed domain name increases the likelihood of confusion, given that Complainant uses its mark in connection with, among other things, hotel services.
Respondents have no rights or legitimate interests in respect of the disputed domain name. A search of the USPTO's TESS database for all marks comprised of the word GREENBRIER, with or without design elements, did not reveal any parties who appear to have any relationship with Respondents. Respondents' names bear no connection to the disputed domain name. Respondents are not affiliated with Complainant, and do not have the permission, consent or license of Complainant to register the disputed domain name.
Respondents are using the disputed domain name, which includes Complainant's GREENBRIER mark, to divert Internet users to a website that has links to, among other things, websites providing competing hotel services. Respondents therefore are not using the disputed domain name for a bona fide offering of goods and services or for a fair or legitimate noncommercial use.
Respondent did not reply to Complainant's contentions.
Complainant has demonstrated that it owns trademark and service mark rights in the GREENBRIER mark. The evidence also shows that Complainant used the mark for many years, and obtained numerous registrations for the mark, prior to Respondents' January 25, 2009 registration of the disputed domain name.
Complainant has also shown that the disputed domain name is identical or confusingly similar to Complainant's GREENBRIER mark. The disputed domain name incorporates the entirety of Complainant's mark. The addition of “hotel” in the disputed domain name compounds rather than dispels the confusion, because Complainant provides resort hotel services, among other things, in connection with the GREENBRIER mark.
Complainant has made an adequate prima facie showing that Respondents do not have rights or legitimate interests in respect of the disputed domain name. Complainant asserts that Respondents did not acquire license or other rights from Complainant, and Complainant's search of the pertinent USPTO records suggests a lack of Respondents' relationship with any third party who may own rights in a GREENBRIER mark in connection with other goods or services. Respondents did not come forward with any evidence to rebut Complainant's prima facie showing.
The Panel is satisfied that Respondents are using the disputed domain name intentionally to attempt to attract, for commercial gain, Internet users to their website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation or endorsement of the site. This constitutes evidence of both bad faith registration and bad faith use.
For all 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 <hotelgreenbrier.com> be transferred to Complainant.
Gregory N. Albright
Dated: May 3, 2010