WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Hotels Combined Pty Ltd. v. Andres Roth, Hotelscombined Ltd
Case No. D2016-2535
1. The Parties
The Complainant is Hotels Combined Pty Ltd. of Sydney, New South Wales, Australia, internally represented.
The Respondent is Andres Roth, Hotelscombined Ltd of New York, New York, United States of America ("US").
2. The Domain Name and Registrar
The disputed domain name <hotelscombined.support> is registered with Tucows Inc. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 15, 2016. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Complainant filed an amended Complaint on December 21, 2016, to correct an administrative formality.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 23, 2016. In accordance with the Rules, paragraph 5, the due date for Response was January 12, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 13, 2017. Due to an administrative oversight regarding notification of the Complaint, the due date for submission of a Response was extended to January 18, 2017. The Respondent did not submit any further communications to the Center.
The Center appointed Adam Taylor as the sole panelist in this matter on January 20, 2017. 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
The Complainant operates a website at "www.hotelscombined.com" which functions as a hotel "meta search engine" and comparison site.
The Complainant owns US registered trade mark no. 3,362,056 for HOTELSCOMBINED, filed April 20, 2007, and registered January 1, 2008, in international class 43.
The disputed domain name was registered on June 20, 2016.
The disputed domain name has been used as the sender address for an email offering employment with a company called "HotelsCombined Limited" with addresses in New York, New York, US and London, Ontario, Canada. The disputed domain name does not resolve to an active website.
5. Parties' Contentions
The Complainant is one of the largest privately owned travel groups in the world.
The only difference between the disputed domain name and the Complainant's trade mark is the generic Top-Level Domain ("gTLD") ".support", which is non-distinctive and not likely to prevent confusion with the Complainant's mark and domain name.
The Respondent has no rights or legitimate interests in the term "hotelscombined". The Complainant has never authorised the Respondent to use its trade mark. The Respondent does not hold any trade mark rights for the term.
The Respondent has used the Complainant's trade mark to perpetrate fraud by sending emails claiming to be from the Complainant and which include false job advertisements. The advertisements are used to lure unsuspecting members of the public to transfer funds to seek employment. This is a fraudulent misuse of the Complainant's trade mark.
The company name used by the Respondent is a false one.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has rights in the mark HOTELSCOMBINED by virtue of its registered trade mark for that term.
The disputed domain name is identical to the Complainant's trade mark, disregarding the gTLD.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview") explains the consensus view concerning the burden of proof regarding lack of rights or legitimate interests in UDRP cases:
"While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP […] If the respondent does come forward with some allegations or evidence of relevant rights or legitimate interest, the panel then weighs all the evidence, with the burden of proof always remaining on the complainant."
Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark.
As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name to impersonate the Complainant. Such use of the disputed domain name is plainly not bona fide.
As to paragraph 4(c)(ii) of the Policy, while the disputed domain name is registered to "Hotelscombined Ltd", the Panel has concluded that this is not a genuine entity, for reasons explained below.
There is no evidence that paragraph 4(c)(iii) of the Policy applies in the circumstances of this case.
The Panel finds that the Complainant has established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent.
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The Complainant says that the disputed domain name is being used to send job advertisement emails purportedly from the Complainant with a view to fraudulently eliciting payments from job applicants. However, the Complainant's evidence is not entirely unequivocal.
The Complainant has provided an email sent from "HotelsCombined <[email]@hotelscombined.support>", which offers the job of administrative assistant to the recipient of the email and attaches a contract of employment for signature. Neither the email nor the contract include any request for payment of money by the applicant. Nor is there any reference to the Complainant specifically (i.e., "Hotels Combined Pty Ltd"). The email is signed by a "manager" at "HotelsCombined ltd" and the employment contract is headed "HotelsCombined Limited".
The only other evidence is an internal email from within the Complainant's organisation forwarding the above email and stating that it had been received from someone in Canada seeking more information about the email and attached contract of employment.
There is no evidence of bogus job advertisements and nothing to support the Complainant's assertion that the Respondent company does not exist.
However, for the following reasons, the Panel considers on balance that the email is part of a fraudulent scheme to impersonate the Complainant and not a genuine job offer from an independent but similarly named company:
1. The contract of employment is poorly written and amateurish.
2. The use of the consolidated term "HotelsCombined" within the Respondent's company name is an unusual formulation and it is difficult to conceive that this was coined other than to target the Complainant's trade mark, which consists of the identical conjoined term: HOTELSCOMBINED.
3. Neither the email nor the employment contract include any company registered number or other official corporate information.
4. The Respondent has not appeared in these proceedings to deny the Complainant's allegations.
Although the exact nature and purpose of the scheme is not clear, the Panel is satisfied that some sort of fraudulent activity is afoot.
Accordingly, the Panel concludes that the disputed domain name was registered and is being used in bad faith by the Respondent.
The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the Policy.
For 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 <hotelscombined.support> be cancelled, as requested by the Complainant.
Date: February 2, 2017