Airbnb, Inc. v. Jonathan Swan
Claim Number: FA1910001865177
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Jonathan Swan (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnb-ipo.com>, registered with NameCheap, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 2, 2019; the Forum received payment on October 2, 2019.
On October 3, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <airbnb-ipo.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 4, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 24, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@airbnb-ipo.com. Also on October 4, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On October 28, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is known for its revolutionary approach to people-powered travel and hospitality. Complainant is a trusted community marketplace for people to list, discover, and book unique accommodations around the world—online or from a mobile phone or tablet. Complainant connects people to unique travel experiences, at any price point, in more than 65,000 cities and 191 countries. Complainant matches renters of temporary lodging with owners of rental properties, provides registered users with directories of rental properties, and property reviews and renter feedback. In addition, Complainant also offers curated “Trips” (travel experiences, including but not limited to handcrafted activities), “Guidebooks” (collections of recommendations and tips about cities from local hosts and other influencers), travel recommendations, and other resources sourced from local experts in destinations around the world. Complainant also provides users with opportunities to engage in a wide range of new experiences involving food and drink, entertainment, music, sports, fashion, the arts, history, and nature as well as travel and lodging. Through Complainant’s services, travelers can book a wide range of activities as part of their travel plans. Since Complainant’s launch, its business has enjoyed staggering growth. In February 2011, Complainant announced its 1 millionth booking since its inception. In January 2012, Complainant accounted its 5 millionth booking. Five months later, Complainant announced that this number had doubled, to 10 million bookings. By November 25, 2014, there were 640,000 Airbnb hosts. By May 2015, over 500,000 people were staying in Airbnb properties per night. As of July 2019, an average of 2 million people were staying at Airbnb listed properties per night. There are now more than 7 million active listings on Complainant’s service. Complainant has rights in the AIRBNB mark through its trademark registrations worldwide, including in the United States in 2010.
Complainant alleges that the disputed domain name is confusingly similar to its AIRBNB mark as it incorporates the mark in its entirety, along with the generic/descriptive acronym “IPO,” a hyphen, and a “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not authorized to use Complainant’s AIRBNB mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the resolving website displays Complainant’s AIRBNB mark and logo and purports to announce an impending IPO, soliciting visitors to provide their personal information. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to confuse internet users into believing Respondent is affiliated with Complainant. Respondent also engages in a fictitious initial public offering which constitutes an illegal phishing scheme. Lastly, Respondent had actual knowledge of Complainant’s rights in the AIRBNB mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark AIRBNB and uses it to marked hospitality and travel services. The mark is famous.
Complainant’s rights in its marks date back to 2010.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays Complainant’s mark and logo and purports to announce an impending IPO, soliciting visitors to provide their personal information.
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."
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.
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(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name incorporates Complainant’s AIRBNB mark in its entirety, along with the generic/descriptive acronym “IPO,” a hyphen, and a “.com” gTLD. Such changes do not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)), see also ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug, 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: absent a reply, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Jonathan Swan.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website displays Complainant’s AIRBNB mark and logo and purports to announce an impending IPO, soliciting visitors to provide their personal information in exchange for access to an IPO investor fact sheet. Use of a disputed domain name to engage in a scheme where internet users provide personal information is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Nordstrom, Inc. v. Above.com Domain Privacy, FA 1654490 (Forum Feb. 1, 2016) (finding respondent failed under Policy ¶¶ 4(c)(i) and (iii) as it phished for internet users’ personal information via a fake survey). Therefore, the Panel finds that Respondent has failed to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent engages in a fictitious initial public offering which constitutes a phishing scheme. Use of a disputed domain name to engage in a phishing scheme for internet users personal information may be evidence of bad faith under Policy ¶ 4(a)(iii). See United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018) (“Use of a domain name to phish for Internet users’ personal information is evidence of bad faith.”). Therefore, the Panel finds that Respondent engaged in bad faith per Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving webpage displays Complainant’s mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <airbnb-ipo.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 28, 2019
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