Generic Top Level Domain Name (gTLD) Decisions

Complainant is Best Western International, Inc., Phoenix, AZ, USA ("Complainant") represented by Byron R Jacobson. Respondent is Walter Wieczorek, Kielce, Poland ("Respondent").

The domain name at issue is "BESTWESTERN.TV" registered with dot TV.

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 30, 2001; the Forum received a hard copy of the Complaint on January 25, 2001.

On February 16, 2001, dot TV confirmed by e-mail to the Forum that the domain name "BESTWESTERN.TV" is registered with dot TV and that Respondent is the current registrant of the name and dot TV verified that Respondent is bound by the dot TV 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 February 16, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 8, 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@BESTWESTERN.TV 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 March 20, 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.

A. Complainant

Complainant asserts that the disputed domain name, BESTWESTERN.TV, is identical to its famous mark, BEST WESTERN; that Respondent has no rights or legitimate interests in the disputed domain name; and that Respondent registered and used the domain name at issue in bad faith.

B. Respondent

Complainant, Best Western International Inc., owns the registered mark BEST WESTERN, which it has used in connection with hotel and motel services since 1946. Currently, Complainant has over 4,000 affiliated properties in over 80 countries. Due to extensive advertising and widespread use, Complainant’s mark has become one of the most readily identifiable marks in the world. Complainant also maintains an official web site, bestwestern.com.

Respondent Walter Wiezorek is not licensed or authorized to use Complainant’s famous mark and to date, Respondent has made no use of the disputed domain name.

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 Complainant 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 the Respondent is identical to or confusingly similar to a trademark or service mark in which 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’s rights are evidenced by its registered mark, BEST WESTERN. Complainant has established that the domain name in issue, BESTWESTERN.TV, is identical to and confusingly similar to Complainant’s famous mark. See Hollywood Network, Inc, v Video Citizen Network, FA 95897 (Nat. Arb. Forum Dec. 20, 2000) (finding that the domain name <hollywoodnetwork.tv> is identical and confusingly similar to Complainant’s HOLLYWOOD NETWORK mark because the "inclusion of the entirety of Complainant’s mark in the domain name at issue makes it confusingly similar"); Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as "net" or "com" does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Treeforms, Inc. v. Cayne Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that confusion would result when Internet users, intending to access Complainant’s website, think that an affiliation of some sort exists between the Complainant and the Respondent, when in fact, no such relationship would exist).

Therefore, the Panel finds that the domain name in issue is identical to and confusingly similar to Complainant’s well-known mark. Policy ¶ 4(a)(i).

The Panel finds Respondent is not commonly known by the disputed domain name and that Respondent is not using the domain name in connection with a bona fide offering of goods or services or for a legitimate, noncommercial fair use. See Adamovske Strojirny v Tatu Rautiainen, D2000-1394 (WIPO Dec. 20, 2000) (finding that Respondent has no rights or legitimate interests in the domain name where Respondent is not commonly known by the distinct ADAST mark and has made no use of the domain name in question).

In fact, Respondent asserted no rights or legitimate interests in the domain name at issue, which entitles the Panel to conclude that Respondent has no such rights or legitimate interest in the domain name. See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. and D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interest where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any such right or interest that it may possess); 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").

Consequently, the Panel finds that Complainant established rights in the mark used to create the domain name in issue and that Respondent has no rights to or legitimate interest in the mark contained within the disputed domain name. Policy ¶ 4(a)(ii).

The popularity of Complainant’s mark permits the conclusion that Respondent knew or should have known of Complainant’s well-known mark prior to registering the disputed domain name. This is evidence of bad faith. See Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) (finding that because Respondent chose to register a well known mark to which he has no connections or rights indicates he registered the domain name in bad faith); see also Reuters Ltd. v. Teletrust IPR Ltd., D2000-0471 (WIPO Sept. 8, 2000) (finding that the Respondent demonstrated bad faith where the Respondent was aware of the Complainant’s famous mark when registering the domain name as well as aware of the deception and confusion that would inevitably follow if he used the domain names).

Moreover, Respondent has passively held the disputed domain name since its registration. This is evidence of bad faith. See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose); DCI S.A. v. Link Commercial Corp. D2000-1232 (WIPO Dec. 7, 2000) (concluding that the Respondent’s passive holding of the domain name satisfies the requirement of paragraph 4 (a) (iii) of the Policy); see also Hewlett-Packard Co. v. Martineau, FA 95359 (Nat. Arb. Forum Aug. 30, 2000) (finding that the Respondent’s failure to submit an assertion of good faith intent to use the domain name, in addition to the passive holding of the domain name, reveal that the Respondent registered and uses the domain name in bad faith).

Thus, the Panel finds that Respondent registered and used the domain name in issue in bad faith. Policy ¶ 4(a)(iii).

Having established all three elements required under ICANN Policy, the Panel concludes that the requested relief shall be and is hereby granted.

Accordingly, it is Ordered that the domain name, BESTWESTERN.TV, be transferred from Respondent to Complainant.