Six Continents Hotels, Inc. v. Larry Goodwyn d/b/a Hoteldiscounters

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Six Continents Hotels, Inc. v. Larry Goodwyn d/b/a Hoteldiscounters

Case No. D2003-0208

1. The Parties

The Complainant is Six Continents Hotels, Inc. ("Six Continents"), an entity organized and existing under the laws of Delaware, United States of America ("USA") maintaining its principal place of business in Atlanta, Georgia, USA.

The Respondent is Larry Goodwyn d/b/a Hoteldiscounters, an individual resident of Heath, Texas, USA.

2. The Domain Names and Registrar

The disputed domain name is <cheap-holiday-inn-hotels-accomodation.com> registered with Wild West Domains, Inc. of Scottsdale, Arizona, USA. (The domain name misspells the word "accommodation.")

3. Procedural History

Six Continents filed a Complaint with the WIPO Arbitration and Mediation Center (the "Center") on March 17, 2003. The Center subsequently 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").

The Center notified the Respondent of the Complaint on March 20, 2003.

The Respondent submitted no response to the Complaint. The Center appointed

the undersigned as Sole Panelist in this matter on May 1, 2003.

4. Factual Background

Complainant is the franchisor of more than 2,900 HOLIDAY INN hotels located

in more than 70 countries throughout the world. Complainant and predecessor

entities have used HOLIDAY INN as a service mark in the United States since

1952. Complainant owns numerous registrations comprising the words HOLIDAY INN

in the field of hotel services. Complainant sponsors an "official"

online reservations website associated with the domain name <holiday-inn.com>.

Respondent operates an Internet website under the trade name and domain name

<hoteldiscounters.com>. According to evidence submitted by Complainant,

the website operated by Respondent characterizes itself as a "global reservations

network" offering "Cheap & Budget Hotel Accomodations Worldwide"

(Complaint Ex. F). Visitors to the "hoteldiscounters.com" site are

able to place online reservations with HOLIDAY INN and other well-known

hotel brands, allegedly at the "lowest rates" available.

In December 2002, Respondent registered the domain name <cheap-holiday-inn-hotels-accomodation.com>.

As of May 15, 2003, that domain name resolved to the "hoteldiscounters.com"

website operated by Respondent. When entered in the YAHOO! search engine on

May 15, 2003, the query, "CHEAP HOLIDAY INN HOTELS ACCOMMODATIONS",

resulted in a display of both (a) the "hoteldiscounters.com" website

in the number 1 position and (b) banner advertising for the "Holiday Inn

Official Site."

Complainant does not allege that HOLIDAY INN franchisees are prohibited from

doing business with Respondent or listing their HOLIDAY INN hotels with Respondent.

Complainant nevertheless alleges that Respondent registered and is using the

domain name <cheap-holiday-inn-hotels-accomodation.com> in bad faith within

the meaning of the Policy, because according to Complainant, Respondent’s registration

and use of that name creates "a likelihood of confusion with the Complainant’s

mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s

website or of Registrant’s hotel reservation services provided by its Website"

(Complaint ¶ 11.C.w), because Respondent is allegedly "diverting Internet

traffic intending to go to Complainant’s website for hotel reservation services

to Respondent’s own Website" (id. ¶ 11.C.x), and because "Internet

users who reserve rooms for a HOLIDAY INN hotel through Respondent’s website

may not receive the same benefits they would if they reserve rooms through Complainant’s

authorized websites" (id. ¶ 11.C.aa).

5. Parties’ Contentions

A. Complainant

Complainant contends that the domain name <cheap-holiday-inn-hotels-accomodation.com>

is confusingly similar to registered service marks comprising HOLIDAY INN in

which Complainant has rights. Complainant further contends that Respondent has

no rights or genuine interests in the domain name <cheap-holiday-inn-hotels-accomodation.com>.

Finally, Complainant alleges the domain name <cheap-holiday-inn-hotels-accomodation.com>

was registered and is being used in bad faith.

B. Respondent

Respondent has served no response to the Complaint.

6. Discussion and Findings

Paragraph 4(a) of the Policy entitles a Complainant to seek an administrative

transfer of a second level Internet domain name in the event that it "proves,"

to the satisfaction of the Panel, three predicates: (1) an accused domain name

is identical or confusingly similar to a trademark or service mark in which

the Complainant has rights; (2) a registrant has no rights or legitimate interests

in respect of the accused domain name; and (3) a registrant’s domain name has

been registered and is being used in bad faith. A fact is "proved,"

for purposes of the Policy, when it is "more likely to be true than not

true based on the evidence." Ciccone v. Parisi, WIPO

Case No. D2000-0847 (October 12, 2000).

The Respondent has served no response to the Complaint. The failure of a Respondent

to controvert facts alleged in a Complaint permits, but does not require, an

inference that the Respondent admits the truth of a Complainant’s allegations.

E.g., Cingular Wireless LLC v. Aceves, WIPO

Case No. D2003-0154 (April 21, 2003). Under the Policy, the Complainant

bears the burden of proving facts sufficient to justify an administrative transfer

of the disputed domain name.

The Panel is fully satisfied that HOLIDAY INN constitutes a famous mark and

is entitled to a high degree of protection. But even giving Complainant the

benefit of inferences permissible from the Respondent’s failure to serve a Response

to the Complaint, the Panel is not satisfied that the evidence submitted by

Complainant is sufficient to carry its burden of proof in this proceeding.

A. Similarity of the Disputed Domain Name and Complainant’s Marks

With regard to the issue of confusing similarity, the accused domain name does,

as Complainant alleges, incorporate the HOLIDAY INN mark owned by Complainant.

But contrary to Complainant’s view, this fact does not ipso facto render

the accused domain name "identical or confusingly similar" to the

service mark HOLIDAY INN.

The accused domain name comprises a phrase that describes services offered

by Respondent at the "hoteldiscounters.com" site. Cf. Volkswagenwerk

Aktiengesellschaft v. Church, 411 F.2d 350, 351-52 (9th Cir. 1969)

("Modern Volkswagen Porsche Service" for a repair shop held not to

infringe the admittedly famous VOLKSWAGEN mark owned by the plaintiff). See

also Giddings & Lewis LLC v. McKean, WIPO

Case No. D2000-1150 (March 14, 2001) (registration and use of

domain name <used-fadals.com>, by a dealer of used FADAL machine tools,

did not violate the Policy; Complaint dismissed).

Complainant’s reliance on the Volvo Trademark Holding AB v. E-Motor Ltd.,

WIPO Case No. D2002-0036 (March 22, 2002)

(<volvoinsurance.com> held confusingly similar to VOLVO) and BP plc

v. Kang-Sung Kun Portraits Production, Case

No. D2001-1097 (November 14, 2001) (<bpjapan.com> held confusingly

similar BP) is misplaced. In those cases, the disputed domain names could readily

be seen as formative versions of the marks owned by the Complainants, and as

falsely identifying or referring to the registrants. Here, by contrast, the

domain name <cheap-holiday-inn-hotels-accomodation.com> clearly refers

to a commodity, not the registrant or any other person; and the words "holiday

inn" refer to genuine HOLIDAY INN hotel services that are offered for sale

at the "hoteldiscounters.com" website with the consent of the participating

hotels.

In sum, the Complainant has not proved, to the Panel’s satisfaction, that the

descriptive phrase comprising the accused domain name is "identical or

confusingly similar to" the service mark HOLIDAY INN or any HOLIDAY INN

formative mark cited in the Complaint.

B. Rights or Legitimate Interests

On the face of the Complaint, the Respondent is admitted to be a legitimate

reseller of hotel services rendered by, among others, authorized HOLIDAY INN

franchisees. As used in the disputed domain name, the words "holiday inn"

refer to the actual name and brand of hotel services that Respondent actually

offers for sale via a commercially functioning website. Complainant makes no

allegation that the "hoteldiscounters.com" site is deceptively dressed

or marked in any way.

In these circumstances the Complainant has not proved, to the Panel’s satisfaction,

that Respondent has no rights or legitimate interests in respect of the

accused domain name. As in the Volkswagen case cited above, the Respondent

is using "holiday inn" to identify the true origin of hotel services

that Respondent is actually and legitimately offering for sale as an independent

broker. Cf. Playboy Enters., Inc. v. Welles, 279 F.3d 796 (9th Cir. 2002)

(former Playboy Playmate of the Year permitted to use the PLAYBOY mark to identify

herself on a website, notwithstanding that the defendant in that case had no

ownership interest in the PLAYBOY mark); DaimlerChrysler A.G. v. Drummonds,

WIPO Case No. D2001-0160 (July 11, 2001)

(retail dealer of genuine MERCEDES parts and accessories had legitimate interests

in domain name <mercedesshop.com>; Complaint dismissed).

C. Bad Faith Registration and Use

Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances

which, if found by a Panel to be present, constitute "evidence of the registration

and use of a domain name in bad faith." The Policy makes clear that a "bad

faith" determination can be based on circumstances other than the four

examples listed in Paragraph 4(b) of the Policy.

Based on Exhibit F to the Complaint and the Panel’s independent examination

of the "hoteldiscounters.com" website to which the accused domain

name resolves, the Panel is not satisfied that the accused domain name was either

registered or is being used in "bad faith" within the meaning of the

Policy. It is doubtless true, as Complainant alleges, that the accused domain

name is intended to attract consumers looking for "cheap HOLIDAY INN hotels."

But if genuine HOLIDAY INN hotels are in fact offering cheap rates and advertising

those rates via Respondent’s website, and if a presentation of this fact attracts

visitors, such "diversion" is not the result of "confusion"

and does not constitute evidence of "bad faith" conduct on the part

of Respondent. The accused domain name is fully consistent with an intent on

Respondent’s part to identify genuine HOLIDAY INN hotel services offered via

the "hoteldiscounters.com" website. Complainant has presented no evidence

that any person, "intending to go to Complainant’s website," would

likely do so by typing in "cheap-holiday-inn-hotels-accomodation.com."

Complainant also has been less than candid in not disclosing to the Panel that

the domain name <holidayinn.com> is registered to a Canadian entity and

does not resolve to "Complainant’s website."

Complainant asserts that bad faith is inferable from the fact that the "hoteldiscounters.com"

website offers various third-party-branded hotel services, not merely HOLIDAY

INN hotel services. In the Panel’s view, this fact tends to weaken, rather than

strengthen, the Complainant’s argument. That Respondent offers, under the descriptive

trade name <hoteldiscounters.com>, hotel services offered by various third

parties in addition to HOLIDAY INN franchisees, tends to reinforce the already

clear implication that Respondent is an independent broker not affiliated with

any particular hotel brand. Complainant has proffered no evidence that Respondent

has any economic incentive for its customers to prefer any one of the various

well-known hotel brands offered at <hoteldiscounters.com>.

Equally unpersuasive is Complainant’s assertion that persons who make HOLIDAY INN

reservation through <hoteldiscounters.com> may not receive the same benefits

that they would receive if reservations were made through the "official"

reservations site maintained by Complainant. The same could be said about any

discount vendor of branded goods. For reasons Complainant has not attempted

to explain, numerous authorized HOLIDAY INN franchisees have chosen to make

their room facilities available for reservation through Respondent and the "hoteldiscounters.com"

website. Complainant would have this Panel make it more difficult for Internet

users to find these legitimate reservation listings offered on the "hoteldiscounters.com"

website. The Panel declines to do so.

7. Decision

I find in favor of the Respondent. The disputed domain name comprises a descriptive

phrase that is neither identical nor, in the Panel’s judgment, confusingly similar

to service marks in which Complainant has rights. Complainant has not proved

to my satisfaction that the Respondent has no rights or legitimate interests

in the disputed domain name. Complainant also has not proved to my satisfaction

that the disputed domain name was registered and is being used in bad faith.

It is, therefore, ordered and adjudged that the Complaint be and hereby is dismissed.

James W. Dabney

Sole Panelist

Dated: June 6, 2003

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