Airbnb, Inc. v. Oliver Wright
Claim Number: FA2112001976488
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Oliver Wright (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnb.okinawa>, 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 December 8, 2021; the Forum received payment on December 8, 2021.
On December 9, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <airbnb.okinawa> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 December 14, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2022 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.okinawa. Also on December 14, 2021, 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 January 9, 2022, 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 the owner of the exceptionally popular AIRBNB brand, known worldwide 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, with more than 5.6 million listings in more than 100,000 cities and over 220 countries and territories. Complainant uses the power of the internet to provide virtual communities in which users can connect with each other and with unique properties and geographic locations throughout the world. Specifically, Complainant matches guests, seeking temporary lodging with hosts of properties, and provides registered users with directories of properties, property reviews, and guest feedback. In addition, Complainant also offers a platform of travel experiences, travel recommendations, and other resources sourced from local experts in destinations around the world. Complainant also provides users with opportunities to engage with a wide range of local experts on food and drink, entertainment, music, sports, fashion, the arts, history, and nature as well as travel and lodging. Through Complainant’s platform, 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 in June 2012, Complainant announced that this number had doubled, to 10 million bookings. By May 2015, over 500 thousand people were staying in Complainant’s properties per night. For New Year’s Eve, December 31, 2015, more than one million guests booked rooms on Complainant’s platform. In March 2019, Complainant celebrated its 500 millionth guest. As of March 2021, Complainant had more than 900 million guests, and more than 5.6 million active listings in over 100,000 cities in over 220 countries and territories worldwide. The breadth of use has been staggering. Complainant asserts rights in the AIRBNB mark through its registration of the mark with multiple trademark organizations around the world, including in the United States in 2011.
Complainant alleges that the disputed domain name is identical or confusingly similar to its AIRBNB mark, as it incorporates the mark in its entirety, only adding the “.okinawa” 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. Complainant has not authorized or licensed Respondent to use the AIRBNB mark, nor is Respondent commonly known by the disputed domain name. Further, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the Respondent attempts to pass off as Complainant in furtherance of a phishing scheme. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by presenting users with a website that perpetuates a phishing scheme. Further, the fact Respondent uses the disputed domain name to defraud users also indicates bad faith. Respondent also had actual knowledge of Complainant’s rights in the mark, evidenced by the fame and notoriety of Complainant’s rights in the mark. Finally, Respondent used a privacy service when registering the disputed domain name. 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 provide travel and hospitality services.
Complainant’s registration of its mark dates back to 2011.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name is used in furtherance of a phishing scheme.
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, merely adding the “.okinawa” gTLD. The mere addition of a gTLD is not sufficient to differentiate a disputed domain name from a mark. See Trulia, Inc. v. Armen A, FA 1586491 (Forum Dec. 2, 2014) (finding confusing similarity under Policy ¶ 4(a)(i) because “[t]he appearance in the Domain Name of the TRULIA mark therefore clearly denotes Complainant and the gTLD suffix “.rentals” reinforces that impression.”); see also Airbnb, Inc. v. Nima Rahnemoon, FA1706001737766 (Forum May 31, 2017) (“The gTLD .org does not serve to distinguish the Domain Name from the AIRBNB mark, which is the distinctive component of the Domain Name.”). The Panel therefore finds that the <airbnb.okinawa> domain name is identical to Complainant’s AIRBNB mark under 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: to determine whether a respondent is commonly known by a disputed domain name, the Panel may look to relevant WHOIS information under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS Information of record shows that the registrant is known as “Oliver Wright”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain under Policy ¶ 4(c)(ii).
Complainant presents evidence to the effect that the resolving website is used to obtain personal information from users in furtherance of a phishing scheme. Such use does not constitute a bona fide offering of goods and services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Garmin Switzerland GmbH v. David Ortiza1, FA1808001802078 (Forum Sept. 13, 2018) (“Complainant provides copies of the webpages associated with the disputed domain name that show that Respondent attempts to phish for information by displaying a fake login page. Therefore, the Panel finds further evidence that Respondent fails to use the disputed domain name for a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).”). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or 4(c)(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, the disputed domain name is used in furtherance of a phishing scheme. This allows a finding of bad faith pursuant to Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”); see also Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). The Panel therefore finds that Respondent registered and used the disputed domain name in 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.okinawa> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 10, 2022
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