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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Six Continents Hotels, Inc. fka Bass Hotels & Resorts, Inc. v. Cortlandt Colonial Restaurants and Receptions
Case No. D2003-0292
1. The Parties
The Complainant is Six Continents Hotels, Inc. fka Bass Hotels & Resorts, Inc., Atlanta, Georgia, United States of America, represented by Robin Blecker & Daley of United States of America.
The Respondent is Cortlandt Colonial Restaurants and Receptions, New York, United States of America.
2. The Domain Names and Registrar
The disputed domain names <holidayinnhotels.com> and <holidayinnsuites.com> are registered with Network Solutions, Inc. Registrar.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 15, 2003. On April 15, 2003, the Center transmitted by email to Network Solutions, Inc. Registrar a request for registrar verification in connection with the domain names at issue. On April 17, 2003, Network Solutions, Inc. 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 administrative, billing, and technical contact. 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 22, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was May 12, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 13, 2003.
The Center appointed Sally Abel as the Sole Panelist in this matter on May 21, 2003. 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
Complainant operates or franchises over 3,300 hotels around the world under such well known brands as HOLIDAY INN, HOLIDAY INN EXPRESS, CROWNE PLAZA and INTERCONTINENTAL. There are more than 1500 HOLIDAY INN hotels around the world, including 37 such hotels within a 50-mile radius of Peekskill, New York, the city closest to Respondent’s address.
Complainant owns trademark and service mark registrations of HOLIDAY INN and other HOLIDAY INN based trademarks and service marks in over 150 countries throughout the world, including HOLIDAY INN, registered in the United States since 1954, for "motor hotel services-namely providing lodging and restaurant services in motels and hotels" (U.S. Registration No. 592, 539), and a host of others. For purposes of this action, Complainant relies on 19 U. S. registrations, and several registrations in Australia, Canada, the People’s Republic of China, France, Germany and Japan of HOLIDAY INN and other HOLIDAY INN-based marks.
Complainant spends approximately $46 million a year advertising and promoting its HOLIDAY INN properties. Since Complainant’s website at "www.holiday-inn.com" went online in 1995, Complainant has recorded approximately 170 million visits to the site.
Respondent obtained the domain names <holidayinnhotels.com> and <holidayinnsuites.com> on December 3, 1998, without Complainant’s authorization. Some time later, Respondent posted identical websites on both domains, promoting Respondent’s restaurant and reception services, including wedding planning, under the heading "Welcome to Cortlandt Colonial." There was no reference on either site to HOLIDAY INN or to any HOLIDAY INN hotel.
On June 20, 2001, Complaint’s outside counsel sent Respondent a cease and desist letter. In a subsequent telephone conversation with Complainant’s outside counsel, Respondent’s principal, Mr. Liaskos, apparently expressed his belief that there was no problem, indicating that he was considering buying a HOLIDAY INN franchise and could possibly use the domain names as leverage to achieve that goal.
Complainant’s counsel sent a second demand letter on July 9, 2001. Sometime between that date and July 15, 2001, Respondent replaced the content on both websites with a mix of messages under the heading "Lakeland High School Class of 1967." The home page for each of the sites, which included links titled "Classmates," "Reunion Information" and the like, otherwise read. "Welcome Veterans & Friends – The City of New York Korean War Veterans 50th Anniversary Commemorative Commission – An official Commission of the City of New York – Rudolph W. Guiliani, Mayor" and included depictions of the American flag and the POW-MIA flag. Again, there was no reference on either site to HOLIDAY INN or to any HOLIDAY INN hotel.
In a letter dated July 16, 2001, Respondent’s outside counsel, termed Complainant’s earlier demands "ludicrous," indicated that his client could use the domains "any way he chooses" and suggested. "If you are interested in purchasing the domain site from him, we will entertain an offer."
For a brief period in September 2001, the content on both websites was changed to contain sexually explicit material promoting a topless dance club named "Corrado’s," claiming to be the "#1 Gentlemen’s Club in Brooklyn." The content subsequently returned to the "Lakeland High School Class of 1967" format. During this period, there was no reference on either site to HOLIDAY INN or to any HOLIDAY INN hotel. The sites now generate display error pages entitled "HTTP Error 403-Access to Internet Service Manager (HTML) is restricted to Localhost."
In December 2002, Respondent renewed the registrations of the domain names for an additional five years. It appears that Respondent provided incomplete contact information to the Registrar at that time.
5. Parties’ Contentions
In addition to the above, Complainant contends that in his telephone conversation with Complainant’s counsel, Mr. Liaskos, Respondent’s principal, indicated that the domain names were for sale, but rejected Complainant’s offer to reimburse Respondent for the $70 per domain name registration fee Respondent had paid.
Complainant contends that the domain names <holidayinnhotels.com> and <holidayinnsuites.com> are confusingly similar, if not virtually identical to Complainant’s HOLIDAY INN marks, that Respondent has no right or legitimate interest in the domain names, and that Respondent’s registration of the domain names, and use as set forth above, constitutes bad faith registration and use
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Respondent has defaulted. Paragraph 14 of the Rules provides that the Panel may draw such inferences from such a default as it considers appropriate. Accordingly, the Panel infers from Respondent’s silence that Complainant’s allegations are, in fact, correct.
A. Identical or Confusingly Similar
The domain names <holidayinnhotels.com> and <holidayinnsuites.com> are confusingly similar to Complainant’s HOLIDAY INN trademarks and service marks. Respondent has simply added two of the most obvious generic terms, "hotels" and "suites," to Complainant’s marks used in connection with hotel services.
B. Rights or Legitimate Interests
Respondent has no right or legitimate interest in either of the domain names. The record is devoid of any suggestion that Respondent had been authorized in any way to incorporate Complainant’s HOLIDAY INN marks in Respondent’s domain names or of any association at all between Complainant and Respondent, other than perhaps as competitors. Further, Respondent’s chosen use of the domain names to promote services arguably competitive to, and certainly related to Complainant’s services, dispels any doubt as to the lack of fair use and the commercial nature of Respondent’s unauthorized use.
C. Registered and Used in Bad Faith
Respondent’s selection of the domain names <holidayinnhotels.com> and <holidayinnsuites.com>, and use of those domain names to promote arguably competitive hospitality services, an adult entertainment club and other content devoid of any relationship with or nexus to Complainant and/or Complainant’s HOLIDAY INN hotels, as well as Complainant’s conduct and offer to sell the domains to Complainant for more than Respondent’s out of pocket costs directly related to the domain names, constitute bad faith registration and use of the domains. Respondent registered the domain names primarily for the purpose of selling the name to Complainant for valuable consideration in excess of any out-of-pocket costs directly related to the domain names (Policy, paragraph 4(b)(i)). Further, Respondent has intentionally attempted to attract users to its site, for commercial gain, by creating a likelihood of confusion with Complainant’s HOLIDAY INN marks (Policy, paragraph 4(b)(iv).
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, <holidayinnhotels.com> and <holidayinnsuites.com> be transferred to the Complainant.
Sally M. Abel
Dated: June 4, 2003