WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Proper Hospitality, LLC v. Privacydotlink Customer 3737079, 3737078, 3688123, 3688119, 3737077, 3688120, 3688122 / Michael Mechler, The Perry Henderson Group

Case No. D2019-0704

1. The Parties

The Complainant is Proper Hospitality, LLC of Santa Monica, California, United States of America (the “United States”), represented by Neal, Gerber & Eisenberg, United States.

The Respondent is Privacydotlink Customer 3737079, 3737078, 3688123, 3688119, 3737077, 3688120, 3688122 of Seven Mile Beach, Grand Cayman / Michael Mechler, The Perry Henderson Group of Austin, Texas, United States.

2. The Domain Names and Registrar

The disputed domain names <austinproperpenthouse.com>, <austinproperpenthouses.com>, <austinproperresidence.com>, <austinproperresidents.com>, <properpenthouse.com>, <properpenthouses.com>, <properresidents.com> are registered with Uniregistrar Corp (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 28, 2019. On March 28, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On March 29, 2019, 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 Center verified that the 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 April 2, 2019. In accordance with the Rules, paragraph 5, the due date for Response was April 22, 2019. The Response was filed with the Center on April 17, 2019. On April 24, 2019, the Complainant lodged with the Center an unsolicited supplemental filing (“Reply in Support of Complaint”). The Respondent objected on April 26, 2019, but requested leave to submit a reply should the Complainant’s supplemental filing be allowed. The Respondent filed an unsolicited submission (“Respond to Complainant’s Submission of Supplemental Information”) with the Center on April 30, 2019. The Center notified the Parties that under the Rules the decision to request or accept supplemental filings is within the sole discretion of the Panel.

The Center appointed William R. Towns as the sole panelist in this matter on April 26, 2019. 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 is a limited liability company organized under Delaware law with its principal office in California. The Complainant’s business involves real estate development and construction of hotel properties and residences, hotel, resort and lodging services, real estate management services, award programs, and other related services. The Complainant trades under the PROPER mark, used in commerce since as early as 2013. The Complainant is the owner of multiple United States trademark registrations for the PROPER mark, as follows: United States Registration No. 5205225, applied for September 5, 2013, registered May 16, 2017; United States Registration No. 5237343, applied for September 5, 2013, registered July 4, 2017; United States Registration No. 5239914, applied for September 5, 2013, registered November 7, 2017; United States Registration No. 5350791, applied for September 5, 2013, registered December 5, 2017; United States Registration No. 5365194, applied for September 5, 2013, registered December 26, 2017; United States Registration. No. 5464736, applied for October 13, 2017, registered May 8, 2018. The Complainant also has registered its PROPER mark in Mexico, Registration No. 1540984, applied for February 28, 2014, registered May 26, 2015.

The Complainant opened the first of its PROPER hotels, the San Francisco Proper Hotel, in August 2017. Other PROPER hotels and residences the Complainant anticipates opening in 2019 include the Santa Monica Proper Hotel, the Downtown L.A. Proper Hotel, and the Austin Proper Hotel and Residences. The Complainant’s PROPER hotels have been the subject of media attention in a number of publications including Forbes, Vanity Fair, Eater, USA Today, Modern Luxury, the Los Angeles Times, Condé Nast Traveler, and Thrillist.

The Respondent as identified by the Registrar in the WhoIs records is Michael Mechler, a real estate agent in Austin, Texas. The Respondent registered the disputed domain names <austinproperpenthouse.com>, <austinproperresidents.com>, <properpenthouse.com>, and <properresidents.com> on June 25, 2018; and thereafter registered the disputed domain names <austinproperresidence.com>, <properpenthouses.com>, and <austinproperpenthouses.com> on August 30, 2018. The Respondent redirected the disputed domain names to a website belonging to the Respondent’s employer, The Perry Henderson Group at Berkshire Hathaway (“Perry Henderson Group”), from which the Respondent posted real estate listings for the Austin Proper Residences.

The Complainant subsequently became aware of the Respondent’s registration and use of the disputed domain names. On October 15, 2018, the Complainant through its legal counsel issued a cease and desist letter to the Respondent. The Complainant’s counsel asserted that the Respondent’s registration and use of the disputed domain names infringed upon the Complainant’s PROPER mark, and constituted a violation of the UDRP as well as the United States Anti-Cybersquatting Consumer Protection Act (“ACPA”). The Complainant’s counsel demanded that the Respondent immediately transfer the disputed domain names to the Respondent.

The Respondent did not respond directly to the Complainant’s letter; however, the Respondent’s father replied to the Complainant’s letter on October 17, 2018, indicating that “Michael and I are working together on this project.” The letter further represented that the disputed domain names had been registered by the Respondent individually and not in any capacity with the Perry Henderson Group. The Respondent’s father stated that the Respondent’s “web forwarding links” had been severed. The Respondent’s father further represented that the disputed domain names were available for purchase should the Complainant be interested in providing a bona fide offer.

The Complainant responded by letter dated November 6, 2018, requesting that the Respondent advise as to the costs incurred by the Respondent to register the disputed domain names. In the meantime the Respondent had obtained legal representation. By letter dated December 26, 2018 the Respondent’s counsel denied that the Respondent’s registration and use of the “Austin Proper Domain Names” traded on the Complainant’s goodwill, violated the UDRP, engaged in cybersquatting or infringed the Complainant’s marks. The Respondent’s counsel further submitted that the Respondent was making a descriptive use of the disputed domain names, explaining that the term “proper” as used in the disputed domain names was a common reference in real estate to the area contained within city limits. Hence, the Respondent’s counsel submitted that the Respondent had established rights and legitimate interests through the descriptive use of the “Austin Proper Domain Names.” The Respondent’s counsel then stated that his client would agree to transfer all of the disputed domain names to the Complainant in exchange for USD 20,000.

The Complainant’s counsel responded to the Respondent’s counsel’s letter on February 5, 2019. The Complainant rejected the Respondent’s offer, representing that the Complainant would proceed with legal action unless the Respondent agreed immediately to transfer the disputed domain names to the Complainant in exchange for the Respondent’s actual costs incurred in registering the disputed domain names. No agreement was reached, and the Complaint subsequently was filed with the Center on March 28, 2019.

5. Parties’ Contentions

A. Complainant

The Complainant submits that the disputed domain names are confusingly similar if not virtually identical to the Complainant’s PROPER mark. The Complainant maintains that the addition of the geographically descriptive designation “austin” and the descriptive words “penthouse(s)”, “resident(s)”, or “residence(s) in the disputed domain names does not preclude a finding of confusing similarity. The Complainant further asserts that the addition of the generic Top-Level domain (“gTLD”) “.com” does not serve to distinguish the disputed domain names from the Complainant’s PROPER mark.

The Complainant maintains that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant avers that the Respondent has no legal relationship with the Complainant and has not been authorized to register the disputed domain names containing the Complainant’s PROPER mark. According to the Complainant, the Respondent has not been commonly known by the disputed domain names, has not used or made demonstrable preparations to the disputed domain names in connection with a bona fide offering of goods or services, and is not making a legitimate noncommercial or other fair use of the disputed domain names. The Complainant submits that the Respondent has used the disputed domain names solely to exploit the goodwill in the Complainant’s PROPER mark, and is now passively holding the disputed domain names.

The Complainant asserts that the Respondent registered and has used the disputed domain names in bad faith with full knowledge of the Complainant’s PROPER mark. According to the Complainant, it is not plausible that the Respondent innocently registered the disputed domain names with no intention of exploiting the Complainant’s PROPER mark. The Complainant maintains that the Respondent’s use of the disputed domain names with a website promoting the Complainant’s own residences in Austin is an indicia of bad faith, and that the Respondent’s bad faith is further evinced by the Respondent’s offer to sell the disputed domain names to the Complainant for USD 20,000. The Complainant argues that the Respondent’s claim to be making a descriptive use of the disputed domain names is belied by the fact that the word “austin” is not present in all of the disputed domain names.

B. Respondent

The Respondent does not contest that the Complainant has obtained trademark registrations for its PROPER mark, used with real estate development, construction of hotel properties and residences, hotel, resort and lodging services, real estate management services, award programs, and similar services. The Respondent submits, however, that none of the services for which the Complainant’s PROPER mark has been registered is related to real estate brokerage, which according to the Respondent is at the heart of the instant dispute. The Respondent contends that the Complainant does not hold a trademark for the use of “Proper” in connection with real estate brokerage activities; asserts that “proper” is a common if not generic word in the English language, and maintains that the Complainant is impermissibly attempting to broaden its PROPER trademark registrations to include real estate brokerage.

The Respondent takes issue with the Complainant’s representation that it has numerous websites promoting its PROPER mark and the services provided thereunder, and given the Complainant’s extensive use as described therein questions why the Complainant had not registered any of the disputed domain names for itself. The Respondent suggests that if the Complainant has achieved a high level of business sophistication and yet neglected to register multiple variations of PROPER-formative domain names, the Complainant has either (1) an inability to understand the importance of web-based marketing, or (2) has chosen to use a strategy of reverse domain name hijacking.

The Respondent submits that he has established rights or legitimate interests in respect of the disputed domain names. According to the Respondent, as an independent contractor in the real estate brokerage business he refrains from marketing properties on the Complainant’s websites, while other real estate agents are doing just that. The Respondent also maintains he has previously utilized the phrase “Austin proper” in his real estate business activities, and provides a Facebook posting referring to a condominium for sale for under USD 200,000 in Austin proper.

The Respondent denies that he was attempting to create an impression of association with the Complainant when registering the disputed domain names. Rather, the Respondent insists he was attempting to provide real estate brokerage services in a manner similar to other real estate professionals. The Respondent refers to the Internet Data Exchange (IDX) and asserts he was completely within his rights to list the Complainant’s properties for sale on the disputed domain names websites.

The Respondent denies registering and using the disputed domain names in bad faith. The Respondent refers to correspondence involving his father in an attempt to resolve the dispute with the Complainant. The Respondent explains that in an attempt to resolve the dispute the offending website links were severed, and the Complainant was informed the disputed domain names were available for purchase. The Respondent claims he did not initiate contact with the Complainant in an attempt to sell the disputed domain names.

The Respondent characterizes the Complainant’s offer to reimburse the Respondent for his incurred expenses as unreasonable and unfair. According to the Respondent, after acquiring legal counsel, and based on the advice of counsel, the Respondent authorized his attorney to make a counter-offer to the Complainant to purchase the disputed domain names for USD 20,000. The Respondent represents this amount was reasonable in order to compensate him for his time and effort expended, expenses incurred, and the loss of a beneficial marketing opportunity for his business. The Respondent notes that his counsel stated “Austin Proper” has a different meaning and conveys a different commercial impression that the term “Proper” standing alone.

The Respondent rejects the Complainant’s claims that the disputed domain names are confusingly similar to the Complainant’s mark, are not confusingly similar, or that the Respondent is not making a bona fide use of the disputed domain names. The Respondent contends he registered and has used he disputed domain names in good faith. The Respondent further contends that the Complainant has attempted more than once to harass and threaten him to manipulate the Respondent to capitulate. The Respondent objects to the inclusion of the Respondent’s employer in the Complaint, and maintains that the Complainant has willfully misrepresented its rights to the Panel and is engaged in reverse domain name hijacking.

6. Preliminary Procedural Issue: Parties’ Supplemental Submissions

No provision in the Policy, the Rules or the Supplemental Rules authorizes supplemental filings by either a complainant or a respondent without leave from the panel. Paragraph 12 of the Rules provides that a panel may request, in its sole discretion, further statements or documents from either of the parties. However, the Rules and relevant UDRP panel decisions demonstrate a decided preference for single submissions by the parties absent exceptional circumstances. See, e.g., Metro Sportswear Limited (trading as Canada Goose) v. Vertical Axis Inc. and Canadagoose.com c/o Whois Identity Shield, WIPO Case No. D2008-0754. Unsolicited supplemental filings are generally discouraged unless specifically requested by the panel. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), paragraphs 4.6 & 4.7 (and relevant decisions cited therein).

UDRP panels have accepted unsolicited supplemental submissions in limited circumstances, when offered to present new, pertinent evidence not reasonably available until after the party’s initial submission (see Top Driver, Inc., v. Benefits, WIPO Case No. D2002-0972); to bring new and highly relevant legal authority not previously available to the attention of the panel (see Pet Warehouse v. Pets.Com, Inc., WIPO Case No. D2000-0105); or to rebut arguments of the opposing party that could not reasonably have been anticipated (see Randan Corp. v. Rapazzini Winery, WIPO Case No. D2003-0353). Conversely, a mere longing to reargue the same issues already submitted is not a valid reason for additional submissions. See World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles, WIPO Case No. D2000-1306.

The Complainant’s Reply does not identify or address specific allegations in the Response that could not reasonably have been anticipated and addressed in the Complaint, particularly given the extent of the Complainant’s pre-filing communications with the Respondent and his representative. The Complainant’s Reply in the main seeks to rebut issues already submitted or which as noted above could have been addressed in the Complaint. Accordingly, neither the Complainant’s nor Respondent’s unsolicited supplemental submissions have been considered by the Panel in reaching a decision in this case.

7. Discussion and Findings

A. Scope of the Policy

The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store, WIPO Case No. D2002-0774. Accordingly, the jurisdiction of this Panel is limited to providing a remedy in cases of “the abusive registration of domain names”, also known as “cybersquatting”, see Weber-Stephen Products Co. v. Armitage Hardware, WIPO Case No. D2000-0187. See Final Report of the First WIPO Internet Domain Name Process, April 30, 1999, paragraphs 169-177. The term “cybersquatting” is most frequently used to describe the deliberate, bad faith abusive registration of a domain name in violation of rights in trademarks or service marks. Id. at paragraph 170. Paragraph 15(a) of the Rules provides that the panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the panel deems applicable.

Paragraph 4(a) of the Policy requires that the complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) the respondent has no rights or legitimate interests with respect to the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

Cancellation or transfer of the domain name is the sole remedy provided to the complainant under the Policy, as set forth in paragraph 4(i).

Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a domain name are deemed to be in bad faith, but does not limit a finding of bad faith to only these situations.

Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in a domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily, if not exclusively, within the knowledge of the respondent. Thus, the consensus view is that paragraph 4(c) of the Policy shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.

B. Identical or Confusingly Similar

The Panel finds that the disputed domain names <austinproperpenthouse.com>, <austinproperpenthouses.com>, <austinproperresidence.com>, <austinproperresidents.com>, <properpenthouse.com>, <properpenthouses.com>, <properresidents.com> are confusingly similar to the Complainant’s PROPER mark, in which the Complainant has established rights through registration and use in commerce. In considering identity and confusing similarity, the first element of the Policy serves essentially as a standing requirement.¹ The threshold inquiry under the first element of the Policy involves a relatively straightforward comparison between the complainant’s trademark and the disputed domain name.

In this case, the Complainant’s PROPER mark is clearly recognizable in the disputed domain names.² The Respondent’s inclusion in the disputed domain names of the geographical term “austin,” and the descriptive terms “penthouse(s)”, “residents”, and “residence” do not dispel the confusing similarity of the disputed domain names to the Complainant’s mark. When the relevant trademark is recognizable in the disputed domain names, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not preclude a finding of confusing similarity under paragraph 4(a)(i) of the Policy.³ The Panel considers that the appropriation of the Complainant’s PROPER mark in the Respondent’s multiple disputed domain name registrations indicates targeting of the Complainant’s mark.⁴

gTLDs generally are disregarded in determining identity or confusing similarity under paragraph 4(a)(i) of the Policy, irrespective of any ordinary meaning that might be ascribed to the TLD.⁵

Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

C. Rights or Legitimate Interests

As noted above, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, the burden of production shifts to the respondent to come forward with evidence of rights or legitimate interests in a domain name. The Panel is persuaded from the record of this case that a prima facie showing under paragraph 4(a)(ii) of the Policy has been made. It is undisputed that the Respondent has not been licensed or otherwise authorized to use the Complainant’s PROPER mark. The Respondent notwithstanding has registered multiple disputed domain names appropriating the Complainant’s PROPER mark, targeted the Complainant, and used the Complainant’s mark without the consent of the Complainant, before attempting to sell the disputed domain names to the Complainant for the sum of USD 20,000.

Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights or legitimate interests in a domain name by demonstrating any of the following:

(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial 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.

UDRP panels generally have held that where a respondent registers a domain name consisting of common or descriptive terms because the respondent has a good faith belief that the domain name’s value derives from its generic or descriptive qualities, the use of the domain name consistent with such good faith belief may establish a legitimate interest. See Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304. But, the domain name must have been registered because of, and any use consistent with, its attraction as a descriptive term, and not because of its value as a trademark. See Media General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964. See also Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415; HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager, WIPO Case No. D2007-0062.

Having regard to all of the relevant circumstances in this case, the Panel considers that despite the Respondent’s claim that “proper” is a common word in English, the Respondent was well aware of the Complainant’s PROPER mark when registering the disputed domain names. The Panel observes that the Complainant consistently has identified its Austin property on its website and elsewhere as the Austin Proper Hotel and Residences. This aligns with a naming convention already in use by the Complainant with its other hotel properties, i.e., the San Francisco Proper Hotel, Santa Monica Proper Hotel, and Downtown L.A. Proper Hotel. The Respondent, an experienced real estate agent and broker, would have been aware of this naming convention, thus rendering pretextual the Respondent’s assertion that “austin proper” in this context is something other than a reference to the Austin Proper Hotel and Residences.

In view of the foregoing, the Panel concludes that the Respondent more likely than not registered the disputed domain names based on their trademark value rather than a good faith belief that the disputed domain name’s value derived from any generic or descriptive qualities. The Respondent has used the disputed domain names to target the Complainant’s mark, and as such the Respondent’s use of the disputed domain names with a website could easily convey to Internet users the impression that the Respondent’s website is affiliated with, sponsored, or endorsed by the Complainant.

To the extent the Respondent claims to be making a fair use of the disputed domain names, any reliance on Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 (hereinafter “Oki Data”) is misplaced. Fundamentally, a respondent’s use of a domain will not be considered “fair” if it falsely suggests affiliation with the trademark owner. UDPR panels generally have found that domain names appropriating a complainant’s trademark carry a high risk of implied affiliation. See WIPO Overview 3.0, sections 2.5 and 2.5.1. The use of a domain name cannot be “fair” if it suggests a non-existent affiliation with the trademark owner; nor can a use be “fair” if it is pretextual. See 201 Folsom Option JV, L.P. and 201 Folsom Acquisition, L.P. v. John Kirkpatrick, WIPO Case No. D2014-1359; Project Management Institute v. CMN.com, WIPO Case No. D2013-2035.

The Panel accordingly finds that the Respondent’s use of the disputed domain names does not constitute use in connection with a bona fide offering of goods or services within the contemplation of paragraph 4(c)(i) of the Policy. Nor, in light of the foregoing, is the Respondent making a legitimate noncommercial or fair use of the disputed domain names within the meaning of paragraph 4(c)(iii) of the Policy. As previously noted, the Respondent has not been authorized to use the Complainant’s mark and has not been commonly known by the disputed domain names within the contemplation of paragraph 4(c)(ii) of the Policy.

Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

D. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) circumstances indicating that the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or

(iii) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) circumstances indicating that the respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.

The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of another. Match.com, LP v. Bill Zag and NWLAWS.ORG, WIPO Case No. D2004-0230.

For the reasons discussed under this and the preceding heading, the Panel considers that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain names within the meaning of paragraph 4(a)(iii) of the Policy. Based on the record, the Panel finds that the Respondent had the Complainant’s PROPER mark in mind when registering the disputed domain names. The Panel further concludes that the Respondent registered the disputed domain names in an attempt to exploit or otherwise capitalize on the Complainant’s rights in its PROPER mark, based on the attractiveness of the Complainant’s mark to divert traffic to the Respondent’s website. See WIPO Overview 3.0, section 3.8.2.

In the attendant circumstances of this case, the Panel considers that the Respondent has intentionally attempted for commercial gain to attract Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or services offered thereon.

Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy.

8. Reverse Domain Name Hijacking

In view of the foregoing findings, the Panel finds the Respondent’s assertion of reverse domain name hijacking without merit.

9. Decision

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 names, <austinproperpenthouse.com>, <austinproperresidents.com>, <properpenthouse.com>, <austinproperpenthouses.com>, <austinproperresidence.com>, <properpenthouses.com>, and <properresidents.com> be transferred to the Complainant.

William R. Towns
Sole Panelist
Date: May 10, 2019

¹ See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.7.

² Id. When the relevant trademark is recognizable in the disputed domain name, the domain name normally will be considered confusingly similar to the mark for purposes of paragraph 4(a)(i) of the Policy.

³ See WIPO Overview 3.0, section 1.8 and cases cited therein.

⁴ See WIPO Overview 3.0, section 1.15.

⁵ See WIPO Overview 3.0, section 1.11.2 and cases cited therein.