Vacation Publications, Inc. v. NA c/o The data in Bulkregister.com's WHOIS database is p
Claim Number: FA0708001064459
Complainant is Vacation Publications, Inc. (“Complainant”), represented by Emerson
Hankamer, of Vacations To Go, Inc., 5851 San Felipe,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vacationtogo.com>, registered with Enom, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On August 24, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 13, 2007 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 makes the following assertions:
1. Respondent’s <vacationtogo.com> domain name is confusingly similar to Complainant’s VACATIONS TO GO mark.
2. Respondent does not have any rights or legitimate interests in the <vacationtogo.com> domain name.
3. Respondent registered and used the <vacationtogo.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Vacation Publications, Inc., is a recognized leader in the field of travel publications and travel services relating to the sale of ocean-going cruises, escorted tours, air and hotel packages, river cruises and safaris. Since 1984, Complainant has continuously used the VACATIONS TO GO mark in commerce in connection with its travel services. Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the VACATIONS TO GO mark (Reg. No. 1,330,100 issued April 9, 1985).
Respondent registered the <vacationtogo.com>
domain name on
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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
The Panel finds that Complainant’s registration of the VACATIONS
TO GO mark with the USPTO sufficiently establishes its rights in the mark under
Policy ¶ 4(a)(i).
See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
Respondent’s <vacationtogo.com> domain name is confusingly similar to Complainant’s VACATIONS
TO GO mark, as it incorporates the dominant features
of Complainant’s mark and simply omits the letter “s.” In addition, the inclusion of the generic
top-level domain “.com” in the disputed domain name is irrelevant, as a
top-level domain is a required element of all domain names. Thus, the Panel finds that the <vacationtogo.com> domain name is confusingly similar to Complainant’s VACATIONS
TO GO mark pursuant to Policy ¶ 4(a)(i). See Universal
City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000)
(finding that deleting the letter “s” from the complainant’s UNIVERSAL STUDIOS
STORE mark did not change the overall impression of the mark and thus made the
disputed domain name confusingly similar to it); see also Isleworth Land Co. v.
Lost in Space, SA, FA 117330 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <vacationtogo.com> domain name. Under Policy ¶ 4(a)(ii), once Complainant has made a prima facie case, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has made a prima facie case under the Policy. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Respondent’s failure to answer the Complaint allows the Panel to presume that Respondent lacks rights and legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). Nevertheless, the Panel will still examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Nothing in the evidence, including the WHOIS information,
suggests that Respondent is commonly known by the <vacationtogo.com> domain name. According to Complainant, Respondent is not
authorized to use the VACATIONS TO GO mark.
Therefore, the Panel finds that Respondent is not commonly known by the <vacationtogo.com> domain name
pursuant to Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no
rights or legitimate interests where (1) the respondent is not a licensee of
the complainant; (2) the complainant’s prior rights in the domain name precede
the respondent’s registration; (3) the respondent is not commonly known by the
domain name in question); see also Wells Fargo & Co. v. Onlyne
Corp. Services11, Inc., FA 198969 (Nat.
According to the evidence, the
disputed domain name resolves to a website that has no active use. The Panel concludes that there is no bona fide offering of goods and services
under Policy ¶ 4(c)(i) or legitimate noncommercial or
fair use under Policy ¶ 4(c)(iii) where Respondent has failed to actively use a
disputed domain name and where no evidence has been provided showing
demonstrable preparations for use of the disputed domain name. See
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s registration and failure to make active use of the <vacationtogo.com> domain name along with a failure to provide evidence showing preparations to use the disputed domain name is representative of bad faith registration and use under Policy ¶ 4(a)(iii). See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that inactive use of a domain name permits an inference of registration and use in bad faith); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two-year period raises the inference of registration in bad faith).
The Panel concludes that Complainant has satisfied 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 <vacationtogo.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 5, 2007
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