DECISION

Charlotte Convention & Visitors Bureau, Inc. v. Panos Hotel Group c/o Jennifer Krupa

Claim Number:  FA0402000236551

PARTIES

Complainant is Charlotte Convention & Visitors Bureau, Inc. (“Complainant”), represented by D. Blaine Sanders, of Robinson, Bradshaw & Hinson, P.A., 101 North Tryon Street, Suite 1900, Charlotte, NC 28246.  Respondent is Panos Hotel Group c/o Jennifer Krupa (“Respondent”), 5936 Monroe Road, Suite 200, Charlotte, NC 28212.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <visitcharlotte.com>, registered with Iholdings.com, Inc. d/b/a Dotregistrar.com.

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

Tyrus R. Atkinson, Jr., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 9, 2004; the Forum received a hard copy of the Complaint on February 13, 2004.

On February 11, 2004, Iholdings.com, Inc. d/b/a Dotregistrar.com confirmed by e-mail to the Forum that the domain name <visitcharlotte.com> is registered with Iholdings.com, Inc. d/b/a Dotregistrar.com and that Respondent is the current registrant of the name. Iholdings.c om, Inc. d/b/a Dotregistrar.com has verified that Respondent is bound by the Iholdings.com, Inc. d/b/a Dotregistrar.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On February 23, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 13, 2004 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@visitcharlotte.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On March 21, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr., as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <visitcharlotte.com> domain name is identical to Complainant’s VISIT CHARLOTTE mark.

2. Respondent does not have any rights or legitimate interests in the <visitcharlotte.com> domain name.

3. Respondent registered and used the <visitcharlotte.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Charlotte Convention & Visitors Bureau, Inc., Complainant, is a non-profit corporation that promotes business and tourism in Charlotte, North Carolina by providing various services, including assistance in lodging, solicitation and scheduling of meeting facilities, catering, transportation, entertainment, and meeting support services.

Consistent with its organizational purpose, Complainant created the VISIT CHARLOTTE mark and began using it on or about March 2002.  Complainant registered the VISIT CHARLOTTE mark with the State of North Carolina Department of the Secretary of State on November 5, 2002.  Complainant uses its VISIT CHARLOTTE mark in connection with promoting business and tourism in Charlotte, North Carolina on its website, e-mail, business stationary and other printed items.

Respondent is a hotel management company in Charlotte, North Carolina and as a result of its business, has interacted with Complainant over the years.  As a hotelier with three affiliated hotels that were partners of Complainant in 2003, Respondent received regular communications from Complainant.

During April 2003, Panos Hotel Group, Respondent, purchased the <visitcharlotte.com> domain name.  Respondent is using the <visitcharlotte.com> domain name as a referral site, which automatically redirects Internet users to its own website located at the <panoshotels.com> domain name. 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

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

Identical and/or Confusingly Similar

Complainant has established rights in the VISIT CHARLOTTE mark though its registration of the mark with the North Carolina Department of the Secretary of State.  See Lee Enters., Inc. v. Polanski, FA 135619 (Nat. Arb. Forum Jan. 22, 2003) (finding evidence that Complainant had established rights in the BILLINGS GAZETTE mark through registration with the Montana and Wyoming state trademark officials); see also Quality Custom Cabinetry, Inc. v. Cabinet Wholesalers, Inc., FA 115349 (Nat. Arb. Forum Sept. 7, 2002) (finding that Complainant’s trademark registrations in Pennsylvania and New Jersey operated as evidence that Complainant had sufficient standing to bring a claim under the UDRP).

Respondent’s domain name wholly incorporates Complainant’s mark and merely adds the generic top-level domain “.com.”  The “.com” in Respondent’s domain name is irrelevant since every domain name must include a generic top-level domain.  Thus, the Panel finds that Respondent’s <visitcharlotte.com> domain name is identical to Complainant’s VISIT CHARLOTTE mark.  See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name <termquote.com> is identical to Complainant’s TERMQUOTE mark). 

Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

In this proceeding, Respondent failed to file a Response to the Complaint.  As such, the Panel accepts all assertions set forth in the Complaint as true.  Therefore, as there has been no evidence presented to the Panel showing that Respondent has rights or legitimate interests in the domain name, the Panel presumes that Respondent lacks rights and legitimate interests in the domain name.  See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that where Complainant has asserted that Respondent has no rights or legitimate interests with respect to the domain name it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (stating that “[i]n the absence of a response, it is appropriate to accept as true all allegations of the Complaint”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because Respondent never submitted a response or provided the Panel with evidence to suggest otherwise).

Respondent’s WHOIS contact information does not indicate that Respondent has been commonly known by the domain name.  Likewise, there is no evidence before the Panel demonstrating that Respondent has been commonly known by the domain name. Consequently, the Panel concludes that Respondent has not been commonly known by the domain name.  See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); see also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).

Respondent is using the domain name to redirect Internet users to its own website.  Similar to the services that Complainant offers under its mark, Respondent, as a hotelier, offers lodging assistance to tourists who are traveling to the Charlotte, North Carolina area at its website.  Thus, the Panel concludes that Respondent is not using the domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where Respondent attempted to profit using Complainant’s mark by redirecting Internet traffic to its own website); see also MBS Computers Ltd. v. Workman, FA 96632 (Nat. Arb. Forum Mar. 16, 2001) (finding no rights or legitimate interests when Respondent is using a domain name identical to Complainant’s mark and is offering similar services).

Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent registered the domain name to divert Internet users to its own website.  At its website, Respondent offers services, which are similar to services offered by Complainant, to the same target market as Complainant. Consequently, the Panel presumes that Respondent registered the domain name primarily for the purpose of disrupting the business of Complainant.  Thus, the Panel finds that Respondent registered the domain name in bad faith pursuant to Policy ¶ 4(b)(iii).  See Lubbock Radio Paging v. Venture Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23, 2000) (concluding that domain names were registered and used in bad faith where Respondent and Complainant were in the same line of business in the same market area); see also EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where Respondent’s sites pass users through to Respondent’s competing business).

Furthermore, Respondent has created a likelihood of confusion among Internet users by the fact that its domain name is identical to Complainant’s mark, Respondent and Complainant both target the same market, and they offer similar services.  Thus, the Panel finds that Respondent is using the domain name for commercial gain by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the services offered at its website pursuant to Policy ¶ 4(b)(iv).  See Identigene, Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where Respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that Complainant is the source of or is sponsoring the services offered at the site); see also Anne of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding bad faith where Respondent used the domain name <anneofgreengables.com> to link users to a website that contained information about the Anne of Green Gables literary works, motion pictures and the author, L. M. Montgomery, because a visitor to the website may believe that the owner of the mark ANNE OF GREEN GABLES is affiliated with or has sponsored or endorsed Respondent's web site); see also Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 15, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where Respondent initially used the domain name at issue to resolve to a website where educational services were offered to the same market as that served by Complainant and later Respondent modified use of the domain name after receiving domain name Complaint).

When determining whether Respondent registered and is using the domain name in bad faith, the Panel can look beyond the factors that are listed under Policy ¶ 4(b).  Since the criteria specified in Policy ¶ 4(b) is not exhaustive, the Panel chooses to look at the totality of the circumstances to determine whether Respondent has acted in bad faith.  See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy paragraph 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith);  see also Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (finding that in determining if a domain name has been registered in bad faith, the Panel must look at the “totality of circumstances”)

It is clear that Respondent was well aware of Complainant’s rights in the VISIT CHARLOTTE mark when it purchased the domain name given the fact that both Complainant and Respondent operate within the tourist industry in Charlotte, North Carolina and Respondent had three affiliated hotels that were partners of Complainant.  Thus, the Panel concludes that Respondent registered and used the domain name in bad faith.  See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration).

Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <visitcharlotte.com> domain name be TRANSFERRED from Respondent to Complainant.

Tyrus R. Atkinson, Jr., Panelist

Dated:  March 25, 2004

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