Domain name - Domain name dispute resolution policy - Trademark - Identical - Confusingly similar - Bad faith registration - Bad faith use – Doubling letter – Mis-spelling – Phonetically identical.

Complainant is a well known provider of commercial hotel, restaurant and hospitality services in the U.S. and internationally.  Complainant has registered and used the mark, MARRIOTT since at least 1957.  Respondent is an individual and registered the domain name, MARIOT.COM on March 15, 2000.

Held, Name Transferred to Complainant.

Complainant must establish both bad faith registration and bad faith use.

It is clear that Complainant's mark, MARRIOTT, and its corresponding domain name, MARRIOTT.COM, is confusingly similar to the domain name MARRIOT.COM regardless of the double "T" in Complainant's mark.

Regardless of the domain name's correspondence to Respondent's surname, it has no right or legitimate interest in the domain name as evidenced by Complainant's superior claim based on its well known and prolonged use of the mark. 

The original registrant of the domain name was Yun Ye.  Upon receipt of a cease and desist order from Complainant Yun Ye transferred the domain name to Respondent. Respondent knew of the existence of Complainant's mark.  Despite this fact Respondent registered the domain knowing that it was confusingly similar to Complainant's mark. This was found to be bad faith registration.

Respondent used the domain at issue for its own commercial gain by diverting traffic away from Complainant's website to its own website.  Respondent created a likely hood of confusion among internet users who would believe that they were diverted to a website affiliated with Complainant. This was held to be bad faith use.
 

Policies referred to

Uniform Domain Name Dispute Resolution Policy, adopted August 26, 1999

Decision referred to
--
Marks Johnson, Panelist:-

The above-entitled matter came on for an administrative hearing on June 20, 2000 before the undersigned judge on the Complaint of MARRIOTT INTERNATIONAL, INC., hereafter “Complainant”, against JOHN MARRIOT, hereafter “Respondent”.  John R. Davis, II, Arent Fox Kintner Plotkin & Kahn, 1050 Connecticut Avenue, NW, Washington, DC 20036 represents Complainant.

Respondent did not appear.

Upon the written submitted record, the following decision is made:

PROCEDURAL FINDINGS
Domain Name: MARRIOT.COM
Domain Name Registrar: ALABANZA d/b/a BULK REGISTER.COM
Domain Name Registrant: JOHN MARRIOT
Date of Domain Name Registration: March 15, 2000.

Status: Not given.

Date Complaint filed: May 2, 2000.
Date of Commencement of Administrative Proceeding in Accordance with Rule 2(a)[1] and Rule 4(c): May 5, 2000.
Due date for a Response: May 25, 2000; Respondent did not appear pursuant to Rule 5(a). 

Relief Requested: Transfer of Registration to Complainant.

After reviewing the Complaint and determining it to be in administrative compliance, the NATIONAL ARBITRATION FORUM (THE FORUM) forwarded the Complaint to the Respondent and it was received on May 5, 2000 in compliance with Rule 2(a), and the administrative proceeding commenced pursuant to Rule 4(c).  In compliance with Rule 4(d), The Forum immediately notified ALABANZA d/b/a BULK REGISTER.COM, the INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS (ICANN) and the Respondent that the administrative proceeding had commenced.  Respondent did not appear as required by Rule 5(a).

On March 15, 2000, Respondent registered the domain name MARRIOT.COM with Domain Name Registrar ALABANZA d/b/a BULK REGISTER.COM. On June 14, 2000 ALABANZA d/b/a BULK REGISTER.COM verified that Respondent is the Registrant for the domain name MARRIOT.COM and that further by registering its domain name with ALABANZA d/b/a BULK REGISTER.COM Respondent agreed to resolve any dispute regarding the domain name through ICANN’s Rules for Uniform Domain Name Dispute Resolution Policy and the Uniform Domain Name Dispute Resolution Policy.

FINDINGS OF FACT
The evidence is undisputed. Based on the record the following findings
are made:

1. Complainant is well known and provides commercial hotel, restaurant and hospitality services in the domestic and international market.

2. Complainant has used the mark MARRIOTT and related marks in interstate domestic and international commerce since at least 1957. 

3. Complainant has been the owner of numerous trademark registrations worldwide for marks that use the mark MARRIOTT, including United States trademark registration Number 899,900, dated September 29, 1970.

4. Complainant also registered the domain name MARRIOTT.COM. 

5. Respondent registered MARRIOT.COM March 15, 2000.

6. The only difference in the domain name Respondent registered, MARRIOT.COM, and Complainant’s domain name MARRIOTT.COM is the double “t” at the end of Complainant’s domain name.

7. Respondent’s domain name is confusingly similar to the marks in which Complainant has prior and superior legitimate rights and interests.

8. Respondent’s domain name was first filed by Yun Ye of NONAME.COM and apparently was transferred to Respondent JOHN MARRIOT after a cease and desist letter was sent to NONAME.COM by Complainant.

9. Respondent has shown no legitimate right to or interest in the domain name MARRIOT.COM.

10. The evidence permits an inference that Respondent registered the domain name
MARRIOT.COM in bad faith.  Evidence of Respondent’s bad faith includes the following:

(a). Respondent knew or should have known that MARRIOTT was a mark of Complainant, which does business under the name throughout the world.

(b) Respondent, without showing legitimate interest in or right to do so, registered a
domain name confusingly similar to Complainant’s apparently, as is shown by Respondent’s use of the domain name, to disrupt the commerce of Complainant by
routing Internet traffic to commercial Web sites that promote goods and services similar to those provided by Complainant and in competition with Complainant. 

(c) Respondent’s use of the domain name MARRIOT.COM is being operated solely to attract for commercial gain, Internet users to Respondent’s Web site, creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s Web site.

PRAYER FOR RELIEF
Complainant’s prayer for relief requests that the domain name MARRIOT.COM be transferred from Respondent to Complainant, pursuant to Paragraph 4(i) of ICANN’s Uniform Domain Name Dispute Resolution Policy.

CONCLUSIONS
The undersigned certifies that she has acted independently as Arbitrator in this dispute and that she has no known conflicts of interest to serve as the Arbitrator in this proceeding.  Having been duly selected, and being impartial, the undersigned makes the following findings and conclusions:

To prevail, the Complainant has the burden of establishing the three factors set out in ICANN’s Uniform Domain Name Dispute Resolution Policy at Paragraph 4(a)(i),(ii) and (iii). Complainant has the burden of showing that (i) Respondent’s domain name is identical to or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the domain name; and (iii) Respondent’s domain name was registered and used in bad faith. (Emphasis added.)

1. Complainant met its burden of establishing that Respondent’s domain name is
identical to or confusingly similar to Complainant’s mark, pursuant to Paragraph
4(a)(i).

2. Complainant met its burden of establishing that Complainant had prior legitimate interests in and right to use MARRIOTT and MARRIOTT.COM in its commercial dealings.  Respondent did not show a right or legitimate interest in respect to these domain names

3. Complainant met its burden of establishing that Respondent acted in bad faith. The evidence allows inferences that Respondent, 

(a) Contrary to ICANN’s Domain Name Dispute Resolution Policy Paragraph 4(b)(iii) knowingly registered the domain name MARRIOT.COM primarily to disrupt the business of Complainant on behalf of competitors of Complainant and the evidence permits an inference that the domain name MARRIOT.COM is being used by Respondent to re-route Complainant’s customers to competitors. 

(b) Contrary to ICANN’S Domain Name Dispute Resolution Policy, Paragraph 4(b)(iv) is using the domain name MARRIOT.COM to intentionally attract, for commercial gain, Internet users to its Web site and other on-line locations, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s Web site or location or of a product or service on Respondent’s Web site location.

DECISION
Based upon the above findings and conclusions, and pursuant to Rule 4(i), it is decided as follows:

THE UNDERSIGNED DIRECTS THAT THE DOMAIN NAME MARRIOT.COM REGISTERED BY RESPONDENT JOHN MARRIOT BE TRANSFERRED TO COMPLAINANT MARRIOTT INTERNATIONAL, INC. FOOTNOTES
[1] Any reference to “Rule” or “Rules are to ICANN’s Rules for Uniform Domain
Name Dispute Resolution Policy and Uniform Domain Name Dispute Resolution
Policy as supplemented by the National Arbitration Forum’s Supplemental Rules to
ICANN’s Uniform Domain Resolution Policy.