Generic Top Level Domain Name (gTLD) Decisions

Complainant is Best Western International, Inc., Phoenix, AZ, USA ("Complainant") represented by Byron R. Jacobson. Respondent is Yosi Hasidim, Petah-Tikva, Israel ("Respondent").

The domain name at issue is "best-western.com" registered with Network Solutions, Inc.

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

Hon. Carolyn Marks Johnson sits as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 22, 2001; the Forum received a hard copy of the Complaint on January 22, 2001.

On January 23, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "best-western.com" is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 4.0 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 January 30, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 19, 2001 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@best-western.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 February 26, 2001, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Hon. Carolyn Marks Johnson 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 the Respondent.

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

The Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") state the following with regard to default cases:

(a) In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the complaint.

(b) If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate. Rule 14.

In this case, Respondent has not submitted a response, and therefore this Panel may infer, for the purposes of this decision, that the averments in the complaint are true. See Ziegenfelder Co. v. VMH Enterprises, Inc. D2000-0039 (WIPO Mar. 14, 2000) (finding that based on Respondent’s failure to respond, the Panel draws two inferences: (1) that Respondent does not deny the facts asserted by Complainant, and (2) Respondent does not deny conclusions which the Complainant asserts can be drawn from the facts).

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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the 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 the Complainant has rights;

(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.

Complainant established it mark BEST WESTERN with appropriate proof. On its face, the domain name at issue, best-western.com, is identical to and confusingly similar to Complainant’s famous mark. See General Electric Co. v. Bakhit, D2000-0386 (WIPO June 22, 2000) (finding that placing a hyphen in domain name between "General" and "Electric" is confusingly similar to Complainant’s mark); Pep Boys Manny, Moe, and Jack v. E-Commerce Today, Ltd., AF-0145 (eResolution May 3, 2000) (finding that a hyphen between words of Complainant’s registered mark is confusingly similar).

Therefore, the Panel finds that Complainant satisfied the requirement of showing that the domain name in issue is identical to and/or confusingly similar to Complainant’s mark. Policy ¶ 4(a)(i).

Complainant also established its right to and legitimate interests in the mark used to create this domain name. Respondent did not show a legitimate or other use of the domain name. Respondent’s use of the domain name to direct the Complainant’s customers to the web site for CD Universe is not a bona fide offering of goods or services. Policy ¶ 4(c)(i), It also is not a legitimate noncommercial use. Policy ¶ 4(c)(iii). See Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding no rights and legitimate interests where Respondent diverted Complainant’s customers to his websites); Big Dog Holdings, Inc. v. Day, FA 93554 (Nat. Arb. Forum Mar. 9, 2000) (finding no legitimate use when Respondent was diverting consumers to its own website by using Complainant’s trademarks).

Further, Respondent has never been commonly known by the domain name. Policy ¶ 4(c)(ii). See Nike, Inc. v. B. B. de Boer, D2000-1397 (WIPO Dec. 21, 2000) (finding no rights or legitimate interests where one "would be hard pressed to find a person who may show a right or legitimate interest" in a domain name containing Complainant's distinct and famous NIKE trademark).

For these reasons the Panel finds that Complainant satisfied the requirement of showing that Complainant has rights to and interests in the mark used to create this domain name and Respondent showed no such rights or interests. Policy ¶ 4(a)(ii).

Respondent’s use of the domain name in issue for commercial gain by attracting Internet users to the web site for CD Universe is some evidence of his bad faith registration and use. Policy ¶ 4(b)(iv). See AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where Respondent linked the domain name to a website that offers a number of web services); Drs. Foster & Smith, Inc. v Jaspreet Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent directed Internet users seeking Complainant’s site to its website for commercial gain).

Moreover, Respondent’s registering of multiple infringing domain names incorporating the well-known trademarks further proves bad faith. Policy ¶ 4(b)(ii). See Australian Stock Exchange v. Community Internet (Australia), D2000-1384 (WIPO Nov. 30, 2000) (finding bad faith under Policy paragraph 4(b)(ii) where Respondent registered multiple infringing domain names containing the trademarks or service marks of other widely known Australian businesses); Armstrong Holdings, Inc. v. JAZ Associates, FA 95234 (Aug. 17, 2000) (finding that Respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names which infringe upon others’ famous and registered trademarks).

Therefore, the Panel finds that Complainant satisfied the burden of showing that Respondent registered and used the domain name in issue in bad faith. Policy ¶ 4(a)(iii).

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the Panel that the requested relief be granted.

Accordingly, for all of the foregoing reasons, it is Ordered that the domain name, "best-western.com" be transferred from the Respondent to the Complainant.

Honorable Carolyn Marks Johnson

Retired Judge

Arbitrator

Dated: March 12, 2001.