DECISION

Marriott International, Inc. v. Seocho

Claim Number:  FA0303000149187

PARTIES

Complainant is Marriott International, Inc., Bethesda, MD, USA (“Complainant”) represented by James R. Davis, of Arent Fox Plotkin & Kahn, PLLC. Respondent is Seocho, Seoul, KOREA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <marrriott.com>, registered with Bulkregister.Com, Inc.

PANEL

The undersigned certifies that he has acted independently and impartially and, to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on March 12, 2003; the Forum received a hard copy of the Complaint on March 14, 2003.

On March 13, 2003, Bulkregister.Com, Inc. confirmed by e-mail to the Forum that the domain name <marrriott.com> is registered with Bulkregister.Com, Inc. and that Respondent is the current registrant of the name. Bulkregister.Com, Inc. has verified that Respondent is bound by the Bulkregister.Com, Inc. 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 March 17, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 7, 2003 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@marrriott.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 April 15, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 Respondent.

RELIEF SOUGHT

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

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <marrriott.com> domain name is confusingly similar to Complainant’s MARRIOTT mark.

2. Respondent does not have any rights or legitimate interests in the <marrriott.com> domain name.

3. Respondent registered and used the <marrriott.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Marriott International, Inc., owns numerous trademark registrations worldwide for the MARRIOTT mark, and marks that incorporate said mark. More specifically, Complainant holds U.S. Patent and Trademark Office (“USPTO”) Reg. No. 899,900 for the MARRIOTT mark registered on September 29, 1970 for use in connection with hotel and restaurant services; and USPTO Reg. No. 947,709, also for the MARRIOTT mark, registered on November 21, 1972 for use in connection with airline catering services.

Complainant has offered goods and services under the MARRIOTT mark since at least 1957, and has subsequently continually used the mark in interstate and international commerce to designate its offerings. Complainant has invested substantial resources in developing and marketing its products under the MARRIOTT mark. As a result of its advertising and marketing efforts, Complainant operates one of the world’s most well-known hotel, restaurant and hospitality companies. Annually, millions of Complainant’s customers worldwide obtain products and services under the MARRIOTT mark. Sales of services under the MARRIOTT mark have amounted to many billions of dollars.

As a result of Complainant’s extensive efforts aimed at developing and marketing its products and services under the MARRIOTT mark, it has become well-known and famous among members of the consuming public.

Respondent, Seocho, registered <marrriott.com> on May 29, 2001 and uses it in connection with various commercial websites. Complainant’s investigation of Respondent’s use of the domain name reveals that <marrriott.com> resolves to a website that offers information and services related to travel, casinos and hotels. Additionally, Respondent’s website makes no mention or reference to Complainant or the MARRIOTT mark.

Complainant’s submission indicates that Respondent has engaged in a pattern of registering domain names that incorporate famous trademarks. Respondent has lost other UDRP disputes involving trademarks owned by Expedia.com, the NASDAQ Stock Market, Inc., Pfizer, Inc., and Compaq Info. Tech. Group.

DISCUSSION

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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

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

(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.

Identical and/or Confusingly Similar

Complainant has established rights in the MARRIOTT mark through registration and continuous use of the mark in interstate and international commerce since at least 1957. See Wal-Mart Stores, Inc. v. MacLeod, D2000-0662 (WIPO Sept. 19, 2000) (finding that the failure of Complainant to register all possible domain names that surround its substantive mark does not hinder Complainant’s rights in the mark. “Trademark owners are not required to create ‘libraries’ of domain names in order to protect themselves”).

Respondent’s <marrriott.com> domain name is confusingly similar to Complainant’s MARRIOTT mark. Respondent’s domain name incorporates Complainant’s famous mark in its entirety, and only deviates with the addition of a third “r.” Respondent’s intentional introduction of a typographical error into Complainant’s famous mark fails to create a distinguishable domain name under Policy ¶ 4(a)(i). Respondent’s efforts constitute “typosquatting,” whereby a registrant deliberately introduces slight deviations into famous marks in order to commercially benefit. Respondent’s typosquatting, by its definition, renders the domain name confusingly similar to Complainant’s mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Dow Jones & Co., Inc. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that the deliberate introduction of errors or changes, such as the addition of a fourth “w” or the omission of periods or other such generic typos do not change Respondent’s infringement on a core trademark held by Complainant).

Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent failed to contest Complainant’s assertions; therefore, all reasonable inferences made by Complainant may be regarded as true, unless clearly contradicted by the evidence. Once Complainant asserts that Respondent does not have any rights or legitimate interests in the disputed domain name, the burden shifts to Respondent to provide credible evidence that supports its claim of validity in the domain name. Because Respondent did not submit evidence substantiating its claim in the <marrriott.com> domain name, Respondent has failed to advance any set of circumstances that would support its rights in the domain name. See Vertical Solutions Mgmt., Inc. v. Webnet-Marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance that could demonstrate rights or legitimate interests in the domain name).

Uncontested evidence indicates that Respondent’s domain name resolves to a website that offers information and services related to travel, casinos and hotels. Additionally, Complainant’s submission reveals that Respondent habitually infringes on others’ marks, therefore allowing the inference that Respondent is intentionally attempting to divert Internet users to its website for commercial gain. Upon keying Respondent’s domain name into the browser, unsuspecting Internet users are confronted with a website that appears to be affiliated with Complainant because of its similar offerings, but in reality, no connection exists. Respondent’s unauthorized capitalization of Complainant’s MARRIOTT mark fails to create rights in the domain name under Policy ¶¶ 4(c)(i) or (iii). See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because Respondent's sole purpose in selecting the domain names was to cause confusion with Complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use).

No evidence before the Panel suggests Respondent is commonly known by the domain name pursuant to Policy ¶ 4(c)(ii). Respondent’s WHOIS information indicates that it is known as “Seocho.” Additionally, Complainant’s submission reveals that Respondent has previously engaged in typosquatting activities, and that the <marrriott.com> domain name resolves to a website that fails to reference Complainant or the MARRIOTT mark in any manner. The above circumstances support a conclusion that Respondent lacks rights and legitimate interests in the domain name. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark).

Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Unrefuted evidence indicates that Respondent uses the <marrriott.com> domain name to ensnare unsuspecting Internet users and divert them to a commercial website. Respondent is attempting to benefit from a perceived affiliation with Complainant and its well-known MARRIOTT mark. Respondent’s bad faith registration and use is enunciated under Policy ¶ 4(b)(iv), which explicitly proscribes unauthorized commercial use of another’s mark. See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Kmart v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).

Additionally, Respondent’s behavior constitutes typosquatting, which in itself constitutes bad faith under the Policy. The circumstances surrounding the dispute involve the necessary elements to conclude that Respondent is engaged in the bad faith practice of typosquatting. More specifically, Respondent’s domain name incorporates a slight typographical error into a famous mark, Respondent attempts to derive commercial benefits from this typographical error, and evidence indicates that Respondent has engaged in this activity before. See Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“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”); see also L.L. Bean, Inc. v. Cupcake Patrol, FA 96504 (Nat. Arb. Forum Mar. 12, 2001) (finding that Respondent acted in bad faith by establishing a pattern of registering misspellings of famous trademarks and names).

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <marrriott.com> domain name be TRANSFERRED from Respondent to Complainant.

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated:  April 28, 2003

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