DECISION

Radisson Hotels International, Inc. v. Bealo Group S.A. d/b/a Promotechnology.com

Claim Number:  FA0311000214459

PARTIES

Complainant is Radisson Hotels International, Inc., Minneapolis, MN (“Complainant”) represented by Edward H. Fallon, Carlson Parkway, P.O. Box 59159, Minneapolis, MN 55459-8249.  Respondent is Bealo Group S.A. d/b/a Promotechnology.com, BP 138, Geneve, Switzerland 1218 (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <radissonmemphisairport.com>, registered with Onlinenic, Inc.

PANEL

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

James A. Carmody, Esq., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on November 25, 2003; the Forum received a hard copy of the Complaint on November 25, 2003.

On November 26, 2003, Onlinenic, Inc. confirmed by e-mail to the Forum that the domain name <radissonmemphisairport.com> is registered with Onlinenic, Inc. and that Respondent is the current registrant of the name. Onlinenic, Inc. has verified that Respondent is bound by the Onlinenic, Inc. 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 December 1, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 22, 2003 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@radissonmemphisairport.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 December 30, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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 <radissonmemphisairport.com> domain name is confusingly similar to Complainant’s RADISSON mark.

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

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

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

FINDINGS

Complainant registered the RADISSON mark with the United States Patent and Trademark Office (“USPTO”) on September 21, 1971 (Reg. No. 920862).  Complainant also owns over 150 pending or registered RADISSON marks throughout the world, including Switzerland.  Complainant has used the RADISSON mark in commerce since 1909 in connection with its internationally renowned hotel company that owns and operates RADISSON hotels worldwide. 

Respondent registered the disputed domain name, <radissonmemphisairport.com>, on August 17, 2003.  Respondent uses the name to redirect Internet users to <vimaxnow.com>, which sells male enhancement products, and allegedly contains sexually explicit content.  Respondent presumably receives referral fees for each user directed towards <vimaxnow.com>.

Complainant has attempted to contact Respondent at the address provided in the WHOIS information, but all communications were returned as undeliverable.

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 RADISSON mark through registration with the USPTO and continuous use in commerce since 1909.

The disputed domain name, <radissonmemphisairport.com>, contains Complainant’s RADISSON mark in its entirety.  The addition of the geographical word “Memphis,” and the generic word “airport,” together describe the exact location of Complainant’s hotel.  See Oki Data Americas, Inc. v. ASD Inc., D2001-0903 (WIPO Nov. 6, 2001) (“the fact that a domain name incorporates a Complainant’s registered mark is sufficient to establish identical or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also VeriSign, Inc. v. Tandon, D2000-1216 (WIPO Nov. 16, 2000) (finding confusing similarity between Complainant’s VERISIGN mark and the <verisignindia.com> and <verisignindia.net> domain names where Respondent added the word “India” to Complainant’s mark); see also Wal-Mart Stores, Inc. v. Walmarket Canada, D2000-0150 (WIPO May 2, 2000) (finding that the domain name, <walmartcanada.com> is confusingly similar to Complainant’s famous mark); see also Marriott Int’l v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that Respondent’s domain name <marriott-hotel.com> is confusingly similar to Complainant’s MARRIOTT mark); see also Space Imaging LLC v. Brownwell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where Respondent’s domain name combines Complainant’s mark with a generic term that has an obvious relationship to Complainant’s business); see also Arthur Guinness Son & Co. Ltd.  v. Healy, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of Complainant combined with a generic word or term).

Therefore, Respondent’s domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). 

Rights or Legitimate Interests

Respondent has not asserted any rights or legitimate interests in the domain name.  Therefore, the Panel may presume that Respondent lacks rights and legitimate interests.  See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where Respondent fails to respond); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

There is also no evidence that Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).  The WHOIS registration information, even with its inaccuracies, fails to imply that Respondent is commonly known by the name.  See Tercent Inc. v. 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); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark).

Complainant has alleged that Respondent uses the disputed domain name to redirect Internet users to a website wholly unrelated to Complainant’s RADISSON mark, presumably for referral fees.  Using a domain name that is confingly similar to another’s registered mark in order to garner Internet traffic for profit is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See WeddingChannel.com Inc. v. Vasiliev a/k/a NA and Free Domains Parking, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that Respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to Complainant’s mark, websites where Respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that Respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to Complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).

Therefore, Complainant has fulfilled Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent has attracted Internet users to <radissonmemphisairport.com>, which redirects users to <vimaxnow.com>, presumably for referral fees, by creating a likelihood of confusion with Complainant’s RADISSON mark.  This is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with Complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) (finding bad faith where Respondent linked the domain name to another website <iwin.com>, presumably receiving a portion of the advertising revenue from the site by directing Internet traffic there, thus using a domain name to attract Internet users for commercial gain); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding bad faith where Respondent attracted users to advertisements).

Additionally, given the worldwide prominence of Complainant’s RADISSON mark, Respondent should have reasonably been aware of Complainant’s rights in the mark.  See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (“there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18. 2000) (finding that Respondent had actual and constructive knowledge of Complainant’s EXXON mark given the worldwide prominence of the mark and thus Respondent registered the domain name in bad faith); see also Yahoo! Inc. v. Ashby, D2000-0241 (WIPO June 14, 2000) (finding that the fame of the YAHOO! mark negated any plausible explanation for Respondent’s registration of the <yahooventures.com> domain name).

The fact that the disputed domain name incorporates Complainant’s mark, and actually pinpoints the exact location of one of Complainant’s hotels, provides the logical conclusion that Respondent, in fact, knew of Complainant’s RADISSON mark and consciously disregarded it.  See Pfizer, Inc. v. Papol Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between Complainant’s mark and the content advertised on Respondent’s website was obvious, Respondent “must have known about the Complainant’s mark when it registered the subject domain name”); see also G.D. Searle & Co. v. Pelham, FA 117911 (Nat. Arb. Forum Sept. 19, 2002) (“It can be inferred that Respondent had knowledge of Complainant’s rights in the CELEBREX mark because Respondent is using the CELEBREX mark as a means to sell prescription drugs, including Complainant’s CELEBREX drug”).

The Panel also notes that Respondent’s furnishing of false WHOIS contact information is a factor in determining bad faith registration and use.  See Nintendo of Am. Inc. v. Lipson, D2000-1121 (WIPO ) ("Respondent’s providing false contact information, in an obvious attempt to remain elusive, is an indication of bad faith"); but see Prisma Press v. Buy Domains, D2001-1073 (WIPO Oct. 22, 2001) (“the Panel believes that providing false contact information although being an indication of bad faith should not be considered sufficient per se (i.e. if it is the only argument in support of Respondent’s bad faith made by Complainant) to establish that the domain name was registered and is being used in bad faith”).

Therefore, Complainant has fulfilled its burden in Policy ¶ 4(a)(iii).

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 <radissonmemphisairport.com> domain name be TRANSFERRED from Respondent to Complainant.

James A. Carmody, Esq., Panelist

Dated:  January 12, 2004

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