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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Six Continents Hotels, Inc. v. Jan Pavlik

Case No. D2007-0472

 

1. The Parties

The Complainant is Six Continents Hotels, Inc., of Atlanta, Georgia, United States of America, represented by The Gigalaw Firm, United States of America.

The Respondent is Jan Pavlik, of Kralupy nad Vltavou, of Czech Republic.

2. The Domain Names and Registrar

The disputed domain names <crowneplazaescort.com> and <holidayinnescort.com> are registered with DSTR Acquisition VII, LLC d/b/a Dotregistrar.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 27, 2007. On March 29, 2007, the Center transmitted by email to DSTR Acquisition VII, LLC d/b/a Dotregistrar.com a request for registrar verification in connection with the domain names at issue. On March 30, 2007, DSTR Acquisition VII, LLC d/b/a Dotregistrar.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 registrant. 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 16, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 6, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 10, 2007.

The Center appointed Manoel J. Pereira dos Santos as the sole panelist in this matter on May 29, 2007. 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 issued a Procedural Order No. 1 dated June 4, 2007, ordering Complainant to request the appropriate remedies as Section VI – Remedies Requested of the Complaint did not refer to the correct disputed domain names. In response to Procedural Order No. 1 Complainant filed on June 4, 2007 an amendment to the Complaint referring to the disputed domain names.

 

4. Factual Background

The marks upon which the Complaint is based are HOLIDAY INN and CROWNE PLAZA. According to the documentary evidence and contentions submitted, Complainant or its affiliates owns a large number of registrations around the world for the (i) HOLIDAY INN mark, including eight U.S. Trademark Registrations which date back to the period of 1954 to 1985 (reference is made to Annex 4 of the Complaint), and (ii) CROWNE PLAZA, including four U.S. Trademark Registrations which date back to the period of 1984 to 2004 (reference is made to Annex 7 of the Complaint).

According to the contentions submitted, Complainant owns a large number of domain names registrations that incorporate the marks HOLIDAY INN and CROWNE PLAZA. Reference is made to Annexes 5 and 8 of the Complaint.

The Panel notes that previous WIPO UDRP Panels have recognized that the HOLIDAY INN and CROWNE PLAZA marks enjoy a wide scope of protection. See, e.g., (i) Six Continents Hotels, Inc. v. Asia Ventures, WIPO Case No. D2003-0659; Six Continents Hotels, Inc. v. CredoNIC.com/Domain Name for Sale, WIPO Case No. D2005-0755; Six Continents Hotels, Inc. v. The Omnicorp, WIPO Case No. D2005-1249; Six Continents Hotels, Inc. v. Domain Park Limited, WIPO Case No. D2007-0313, with respect to HOLIDAY INN mark, and (ii) Six Continents Hotels, Inc. v. Interbase, Inc., WIPO Case No. D2002-1045; Six Continents Hotels, Inc. v. Dkal, WIPO Case No. D2003-0244; Six Continents Hotels, Inc., Inter-Continental Hotels Corporation v. South East Asia Tours, WIPO Case No. D2004-0388; and Six Continents Hotels, Inc. v. Tripod UK Ltsd., WIPO Case No. D2006-0041, with respect to CROWNE PLAZA mark.

According to the contentions submitted, Complainant is one of a number of companies collectively known as the InterContinental Hotels Group, which own, manage, lease or franchise, through various subsidiaries, more than 3,600 hotels in nearly 100 countries and territories around the world. The HOLIDAY INN brand is used in connection with 1,393 hotels worldwide and the CROWNE PLAZA brand is used in connection with 258 hotels worldwide. Reference is made to Annexes 3 and 6 of the Complaint.

According to the documentary evidence, Respondent registered the domain names <crowneplazaescort.com> and <holidayinnescort.com> with DSTR Acquisition VII, LLC d/b/a Dotregistrar.com on August 17, 2006. Reference is made to Annex 1 of the Complaint.

5. Parties’ Contentions

A. Complainant

Complainant contends that the disputed domain names contain the HOLIDAY INN and the CROWNE PLAZA marks in their entirety plus another term (i.e., “escort”). Relying on previous WIPO UDRP decisions, Complainant argues that the use of the HOLIDAY INN or CROWNE PLAZA marks plus another term in a domain name creates a domain name that is confusingly similar to its registered marks, and that the use of the word “escort” does not eliminate confusing similarity between the domain name and the mark.

Complainant further contends that Respondent has no rights or legitimate interests in the disputed domain names because (i) Complainant never assigned, granted, licensed, sold, transferred or in any way authorized Respondent to register or use the HOLIDAY INN or CROWNE PLAZA marks, (ii) Respondent has not used or made any preparations to use the disputed domain name in connection with a bona fide offering of goods or services, since Respondent is using the disputed domain names in connection with hard-core pornographic websites, (iii) Respondent is not commonly known by the disputed domain names or any variations thereof, and (iv) Respondent is not making non-commercial or fair use of the disputed domain names.

Finally, Complainant argues that Respondent has registered the disputed domain names in order to prevent Complainant from reflecting the HOLIDAY INN and CROWNE PLAZA marks in a corresponding domain name, and that Respondent has engaged in a pattern of conduct primarily for the purpose of disrupting Complainant’s business. Complainant contends that Respondent has adopted such a pattern of conduct in similar registrations where the registered domain name contains a well-known trademark plus the word “escort”. Reference is made to Annex 10 of the Complaint.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

While Respondent did not timely reply to the Complainant’s contentions, Respondent, upon receipt of the Center’s Notifications of Complaint and Commencement of Administrative Proceeding and of Respondent Default, sent email messages to the Center stating that “we cancelled both of complained domains” and “both domains had been withdrawed today from websites and will be in our hands without any other fonction till their expiry”.

This Panel finds that there are no exceptional circumstances for the failure of the Respondent to submit a Response. As a result, the Panel infers that the Respondent does not deny the facts asserted and contentions made by Complainant. Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441, LCIA (London Court of International Arbitration) v. Wellsbuck Corporation, WIPO Case No. D2005-0084, Ross-Simons, Inc. v. Domain Contac., WIPO Case No. D2003-0994. Therefore, asserted facts that are not unreasonable will be taken as true and, in line with previous UDRP decisions, the Respondent will be subject to the inferences that flow naturally from the information provided by the Complainant; see Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441, RX America, LLC v. Matthew Smith, WIPO Case No. D2005-0540.

The Panel will now review each of the three cumulative elements set forth in Paragraph 4(a) of the Policy to determine whether Complainant has complied with such requirements.

A. Identical or Confusingly Similar

This Panel concurs with the opinion of several prior WIPO UDRP panels which have held that, when a domain name wholly incorporates a complainant’s registered mark, that is sufficient to establish confusing similarity for purposes of the Policy. See, e.g., Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903; Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Eauto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047; Bayerische Motoren Werke AG v. bmwcar.com, WIPO Case No. D2002-0615.

That is particularly true when the registered mark is entitled to a high level of protection due to its fame and notoriety, as is the case of the HOLIDAY INN and CROWNE PLAZA marks. See, e.g., Six Continents Hotels, Inc. v. CredoNIC.com/Domain For Sale, supra; Six Continents Hotels, Inc. v. Sdf fdgg, WIPO Case No. D2004-0384; Six Continents Hotels, Inc., Inter-Continental Hotels Corporation v. South East Asia Tours, supra; Six Continents Hotels, Inc. v. Telmex Management Services, WIPO Case No. D2001-0996.

The Panel also concurs with the finding of previous WIPO UDRP panels that the addition of the word “escort” in a domain name is not sufficient to avoid a finding of confusing similarity to the relevant mark. In fact, the Complainant’s HOLIDAY INN and CROWNE PLAZA brands are used in connection with hotels worldwide. Rather than distinguishing the disputed domain name from Complainant’s marks, the addition of “escort” word increases the likelihood of confusion in the mind of the consumer and Internet user. See e.g., V&S Vin&Sprit AB v. Coreswood Limited, WIPO Case No. D2006-0594 (“[p]revious cases under the UDRP have shown that simply adding a common or generic term, such the word “escort”, to a famous mark is not sufficient to give the domain name an individual meaning and prevent the overall impression that the domain name has some sort of connection with the Complainant.”); Group Kaitu, LLC. v. Darkside Productions, Inc. v. Group Kaitu LLC aka Manila Industies, Inc, WIPO Case No. D2005-1087 (“The Respondent’s combination of the Complainant’s mark with non-distinctive geographic identifiers and generic terms such as “entertainment” does nothing to dispel this confusing similarity”).

Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met.

B. Rights or Legitimate Interests

Complainant further contends that Respondent has no legitimate interests or rights in the disputed domain names.

The consensus view of the WIPO Overview of WIPO Panel Views on selected UDRP Questions is that, once a complainant makes out a prima facie case that a respondent lacks rights or legitimate interests in the domain names, respondent then carries the burden of demonstrating rights or legitimate interests in the domain names. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, para. 2.1).

The Panel is convinced that the Complainant has established a prima facie case. There is nothing to indicate that Respondent is commonly known by the disputed domain names, the principal element of the disputed domain names is the Complainant’s famous brand names and marks, and it is evident that Complainant has not authorized the Respondent to use its marks and names in the domain names.

Complainant further contends that Respondent is not using the domain names in connection with a bona fide offering of goods and services and is not making a legitimate non-commercial or fair use of the disputed domain names. In fact, Respondent was apparently using the disputed domain names in connection with hard-core pornographic websites by redirecting visitors to “www.escortdivky.cz” (Reference is made to Annex 9 of the Complaint). Upon receipt of the Center’s Notifications of Complaint and Commencement of Administrative Proceeding and of Respondent Default, Respondent appears to have cancelled the redirection of the disputed domain names to the “www.escortdivky.cz” website.

In short, the Complainant has satisfied its burden of providing sufficient evidence to make a prima facie case showing that Respondent lacks rights to or legitimate interests in the disputed domain names, and the Respondent has failed to provide the Panel with any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that Respondent has any rights or legitimate interests in the disputed domain names. Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465.

In light of the foregoing, the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is met.

C. Registered and Used in Bad Faith

The fact that the Respondent has chosen as domain names previously registered and widely known trademarks (HOLIDAY INN and CROWNE PLAZA) plus a generic term (i.e., “escort”) is per se a clear indication that registration of the disputed domain names was made in bad faith. Respondent could not reasonably have been unaware of the existence or the reputation of the HOLIDAY INN and CROWNE PLAZA marks.

In addition, the Panel is convinced by all the evidence produced in this case and by Respondent’s default that Respondent intended to free ride on Complainant’s reputation and goodwill by diverting Internet users and customers to a website for commercial gain.

The Panel takes further the view that in this case the content of the website (a hard-core pornographic website) is relevant in the finding of bad faith registration and use. Also, Respondent appears to have admitted in its email messages to the Center that there was no justification for such use of the disputed domain names.

The Panel notes that Respondent appears to have changed its previous practice of redirecting Internet users to the “www.escortdivky.cz” website claiming that the present intention is to maintain the disputed domain names as inactive “till their expiry”. The Panel further notes that such change occurred after Respondent received the Center’s Notification of Complaint and Commencement of Administrative Proceeding. Those circumstances trigger a basic conclusion: Respondent’s change of the redirection was arguably intended to avoid a finding of bad faith in the present proceeding.

In short, the manner in which Respondent has used and is using the disputed domain names demonstrates that <crowneplazaescort.com> and <holidayinnescort.com> were registered, were used and still are being used in bad faith.

Therefore, the Panel finds that the requirement of paragraph 4(a)(iii) of the Policy is met.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <crowneplazaescort.com> and <holidayinnescort.com> be transferred to the Complainant.

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Manoel J. Pereira dos Santos
Sole Panelist

Dated June 12, 2007