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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

La Quinta Worldwide L.L.C. v. Watch My Domain

Case No. D2006-0623

 

1. The Parties

The Complainant is La Quinta Worldwide L.L.C., Las Vegas, Nevada, United States of America, represented by Lydecker, Lee, Behar, Berga & DeZayas, LLC, United States of America.

The Respondent is Watch My Domain, Nick M., Oshiwara, Andheri (West), Mumbai, Maharashtra, India, represented by Naresh Malik. The Response states that the names Watch My Domain and Nick M are aliases for Naresh Malik.

 

2. The Domain Name and Registrar

The disputed domain name <wwwlaquintainn.com> is registered with Lead Networks Domains Pvt. Ltd.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 18, 2006. On May 19, 2006, the Center transmitted by email to Lead Networks Domains Pvt. Ltd. a request for registrar verification in connection with the domain name at issue. On May 22, 2006, Lead Networks Domains Pvt. Ltd. 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on May 24, 2006. The Center verified that the Complaint together with the amendment to 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 May 30, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June 19, 2006. The Response was filed with the Center June 19, 2006.

The Center appointed Alan L. Limbury, Robert A. Badgley and Pravin Anand as panelists in this matter on July 20, 2006. The Panel finds that it was properly constituted. Each member of 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.

On July 5, 2006, the Complainant filed with the Center a document entitled “Complainant’s motion to strike and/or dismiss Respondent’s Response for failure to comply with the Rules and the Policy”. On July 14, 2006, the Respondent filed with the Center a document entitled “Response of the Respondent to the Complainant’s motion to strike and/or dismiss Respondent’s response”. These documents were transmitted to the Panel with the case file.

Rule 12 of the Rules provides that the Panel may in its sole discretion request further statements or documents from either of the parties. Thus, no party has the right to insist upon the admissibility of additional evidence: SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092. The Panel rejects Complainant’s Motion to Dismiss the Response and refuses to take the document into consideration because it is no more than an attempt to reply to the substance of the Response. It does not address arguments that could not have been anticipated nor provide evidence unavailable at the time of filing the Complaint: see Goldline International, Inc. v. Gold Line, WIPO Case No. D2000-1151. It simply re-argues the case. It follows that the Panel also does not admit the Respondent’s reply to the motion.

On August 3, 2006, due to exceptional circumstances and pursuant to the Rules, paragraph 10(c), the Panel extended the time within which its decision was to be forwarded to the Center to August 8, 2006.

 

4. Factual Background

Complainant operates over 500 hotels in Canada and the U.S. It has numerous registered trademarks in the U.S. and elsewhere for hotel services. It is sufficient for present purposes to note its U.S. registrations 0875802 and 1080641 for LA QUINTA dated August 26, 1969 and December 27, 1977 respectively and 1823440 and 1841032 for LA QUINTA INN dated February 22, 1994 and March 29, 1994 respectively.

Prior to registration of the disputed domain name, Complainant applied to register various marks in India, the country of Respondent’s residence, namely LA QUINTA, LA QUINTA INN and LA QUINTA INN & SUITES.

Complainant has registered various domain names including <laquinta.com> on June 15, 1995 and <laquintainn.com> on October 10, 2005.

The disputed domain name <wwwlaquintainn.com> was registered on October 21, 2005. At the time of filing the Complaint, it resolved to a web page displaying links to various goods and services, including hotels. The page contains a statement that it is provided free to the domain owner by “Sedo’s Domain Parking”. The website at “www.sedo.co.uk” describes Sedo as “the leading marketplace for buying and selling domain names and websites”. The Sedo domain name parking program “lets you earn money from your domain names without needing to develop your own site”. Sedo hosts the site and provides targeted ad links, displaying advertisements provided by Google AdWords. Revenue of up to US$1.50 per click is generated to the domain name owner.

 

5. Parties’ Contentions

A. Complainant

Complainant says Respondent had actual or constructive notice of Complainant’s trademark rights to LA QUINTA INN when he registered the disputed domain name; that the domain name is confusingly similar to Complainant’s trade marks; that Respondent has no rights or legitimate interests in the disputed domain name and that the domain name was registered and is being used in bad faith.

Complainant says Respondent has engaged here in the practice known as “typosquatting” by registering a domain name comprising a trade mark prefaced by the letters “www” and without the period which customarily follows and which Internet users intending to reach a site associated with the trademark owner may easily omit by mistake. Complainant refers to other domain name cases in which Respondent has been found to have engaged in identical typosquatting, involving the domain names <wwwbankofamercia.com> and others (NAF Case No. FA 060300066312), <wwwmeade.com> (NAF Case No. FA 0502000423017) and <wwwoldnational.com> (NAF Case No. FA 0509563651).

B. Respondent

The Respondent denies all Complainant’s allegations and says that upon being informed of Complainant’s trademarks by email from Complainant in March 2006, Respondent asked to be reimbursed his out of pocket expenses of US$246.95 but Complainant declined. This justifies dismissal of the Complaint.

Respondent asks how can a skilled person make a mistake of logging on to the website of Respondent when he is looking for the services of Complainant? There is a vast difference between Complainant’s trademarks and the disputed domain name.

Respondent denies being aware of Complainant’s marks. He is a general domain name seller, in the business of buying and selling domain names. Until the websites are not [sic] developed, the domain name[s] are pointed to different pages. Trading in domain name registrations is considered a bona fide offering of goods and services.

The disputed domain name had previously been registered by someone else and not renewed. Complainant never exercised its rights against the former owner. Complainant is pursuing Respondent in India thinking he cannot defend himself.

With reference to the various cases mentioned by Complainant, Respondent says there are suits pending against those decisions, hence the matters are sub judice and cannot be used as references unless they are disposed of by the appropriate courts.

Respondent says he was well within his rights under the Policy, paragraph 4(b)(i) in seeking reimbursement of his documented out of pocket expenses and did not register the disputed domain name in bad faith.

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the domain name the Complainant must prove that

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

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

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

A. Identical or Confusingly Similar

Complainant relies on its registered trademarks, no doubt in recognition of the fact that its trademark registration applications in India do not give rise to trade mark rights: see Aspen Grove, Inc. v. Aspen Grove, WIPO Case No. D2001-0798 and Spencer Douglass MGA v. Absolute Bonding Corporation, WIPO Case No. D2001-0904.

The test for confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone, independent of the other marketing and use factors usually considered in trademark infringement or unfair competition cases. See for example BWT Brands, Inc. and British American Tobacco (Brands), Inc v. NABR, WIPO Case No. D2001-1480 and Vivendi Universal v. Mr. Jay David Sallen and GO247.COM, Inc., WIPO Case No. D2001-1121, and the cases there cited.

The disputed domain name wholly incorporates Complainant’s registered trade marks LA QUINTA and LA QUINTA INN, with the inconsequential gTLD suffix .com and the equally inconsequential prefix www, neither of which, taken alone or together, serves to distinguish the domain name from those marks: see Old National Bancorp v. WatchMyDomain c/o Nick M., NAF Case No. FA 0509000563651 and the cases there cited.

The Panel finds the disputed domain name to be confusingly similar to Complainant’s registered marks LA QUINTA and LA QUINTA INN. Complainant has established this element of its case.

B. Rights or Legitimate Interests

Nothing in the record suggests that Respondent is known by the disputed domain name.

Using a “pay per click” parking service to generate revenue because of the association of the domain name with Complainant’s marks is trading on Complainant’s goodwill and cannot constitute fair non commercial use nor a bona fide offering of goods or services: see Blair Holdings, Inc. v. Watch My Domain c/o Nick M., NAF Case No. FA 0507000526028.

The Panel finds Respondent has no rights or legitimate interests in the disputed domain name. Complainant has established this element of its case.

C. Registered and Used in Bad Faith

Complainant alleges that Respondent had actual or constructive knowledge of its marks when he registered the disputed domain name. The Panel endorses the view, expressed in The Way International, Inc. v. Diamond Peters, WIPO Case No. D2003-0264, that there is no place under the Policy for the concept of constructive knowledge. The essence of the Complaint is an allegation of bad faith on the part of Respondent, targeted at the Complainant. This requires actual knowledge of the existence of the trade mark or its owner. See also Asset Marketing Systems, LLC v. Silver Lining, WIPO Case No. D2005-0560.

Here the Panel has inferred and found that Respondent had actual knowledge of Complainant’s marks.

“Typosquatting is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith”: National Association of Professionall Baseball Leagues, Inc., d-b-a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011.

Respondent is a serial typosquatter. He registered the domain name <wwwmeade.com> on May 17, 2004 (Meade Instruments Corp. v. Drop One – Buy/Sell/Lease and Snapping Services c/o Nick M., NAF Case No. FA 0502000423017). He registered the domain name <wwwoldnational.com on August 15, 2005 (Old National Bancorp v. WatchMyDomain c/o Nick M., NAF Case No. FA 0509563651). He registered the domain names <wwwbankofamercia.com>, <wwwbankofameric.com>, <wwwbankofamerical.com> and <wwwbankofamericia.com> (Bank of America Corporation v. Watch My domain c/o Nick M., NAF Case No. FA 060300066312, determined on May 3, 2006). This pattern of cybersquatting allows the inference to be drawn that Respondent was aware of Complainant’s marks and of Complainant’s domain name, <laquintainn.com> (registered on October 10, 2005) when Respondent registered the disputed domain name on October 21, 2005. The Panel finds that Respondent was so aware.

Not only is typosquatting of itself evidence of bad faith (National Association of Professionall Baseball Leagues v. Zuccarini, WIPO Case No. D2002-1011) but the record establishes that Respondent has been using a “pay per click” parking service to generate revenue because of the misleading association of the disputed domain name with Complainant’s marks. This is evidence of both registration and use in bad faith within the Policy, paragraph 4(b)(iv). The fact that Complainant rejected Respondent’s offer in March this year to transfer the disputed domain name for what he claimed were his out of pocket expenses does nothing to detract from this conclusion.

The Panel finds that the disputed domain name was registered and is being used in bad faith. Complainant has established this element of its case.

 

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 name <wwwlaquintainn.com> be transferred to the Complainant.


Alan L. Limbury
Presiding Panelist


Robert A. Badgley
Panelist


Pravin Anand
Panelist

Dated: August 8, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0623.html

 

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