Hotwire, Inc. v. This domain name is 4 sale c/o Yingkun Guo
Claim Number: FA0712001118857
Complainant is Hotwire, Inc. (“Complainant”), represented by Clarence
H. Brown, of Kirkpatrick & Lockhart Preston Gates
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <hotwir.com> and <hotire.com> registered with Enom, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On December 17, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 7, 2008 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 firstname.lastname@example.org and 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <hotwir.com> and <hotire.com> domain names are confusingly similar to Complainant’s HOTWIRE mark.
2. Respondent does not have any rights or legitimate interests in the <hotwir.com> and <hotire.com> domain names.
3. Respondent registered and used the <hotwir.com> and <hotire.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hotwire, Inc., is a company that offers travel
agency services online. Complainant
filed a registration for the HOTWIRE mark with the United States Patent and
Trademark Office (“USPTO”) on
Respondent registered the <hotwir.com> and <hotire.com> domain
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 has established rights in
the HOTWIRE mark pursuant to Policy ¶ 4(a)(i) through registration of the mark
with USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
The Panel finds that Respondent’s <hotwir.com> and <hotire.com> domain
names are confusingly similar to Complainant’s HOTWIRE mark pursuant to Policy
¶ 4(a)(i) because Respondent’s disputed domain names incorporate Complainant’s
mark with common typographical errors. The
deletion of the letter “e” from the first disputed domain name and the deletion
of the letter “w” from the second do not adequately distinguish the disputed
domain names from Complainant’s mark under Policy ¶ 4(a)(i). See
State Farm Mut. Auto. Ins. Co. v. Try Harder &
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainant has alleged that Respondent does not have rights
or legitimate interests in the <hotwir.com> and <hotire.com> domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts
to Respondent to prove that it does have rights or legitimate interests
pursuant to Policy ¶ 4(a)(ii). The Panel
finds that Complainant has established a prima
facie case. Due to Respondent’s
failure to respond to the Complaint, the Panel may assume that Respondent does
not have rights or legitimate interests in the disputed domain names. See G.D. Searle v. Martin Mktg., FA
118277 (Nat. Arb. Forum
Respondent is using the <hotwir.com> and <hotire.com> domain names to resolve to websites which merely welcome the Internet user and offer the websites for sale. The Panel finds that using the disputed domain names only to offer them for sale is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain names pursuant to Policy ¶ 4(c)(iii). See Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Nat. Arb. Forum July 31, 2000) (finding no rights or legitimate interests where the respondent registered the domain name with the intention of selling its rights); see also Cruzeiro Licenciamentos Ltda v. Sallen, D2000-0715 (WIPO Sept. 6, 2000) (finding that rights or legitimate interests do not exist when one holds a domain name primarily for the purpose of marketing it to the owner of a corresponding trademark).
Additionally, the record and WHOIS information indicates no
evidence suggesting Respondent is commonly known by the <hotwir.com> and <hotire.com> domain
names. There is also no evidence in the
record that Respondent is authorized to use Complainant’s mark. Thus, Respondent has not established rights
or legitimate interests in the <hotwir.com> and <hotire.com> domain names pursuant to Policy ¶
4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <hotwir.com> and <hotire.com>
domain names to resolve to websites offering the disputed domain names for
sale. The Panel finds that such use is
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i). See
Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's
general offer of the disputed domain name registration for sale establishes
that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); see also Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679
(Nat. Arb. Forum
Also, the Panel finds that Respondent’s registration of the <hotwir.com> and <hotire.com> domain names constitutes a bad faith pattern of registration and use pursuant to Policy ¶ 4(b)(ii) as Respondent has registered two domain names which infringe on Complainant’s mark. See YAHOO! INC v. Syrynx, Inc., D2000-1675 (WIPO Jan. 30, 2001) (finding a bad faith pattern pursuant to Policy ¶ 4(b)(ii) in the respondent's registration of two domain names incorporating the complainant's YAHOO! mark); see also Australian Stock Exch. v. Cmty. Internet (Australia) Pty Ltd, D2000-1384 (WIPO Nov. 30, 2000) (finding bad faith under Policy ¶ 4(b)(ii) where the respondent registered multiple infringing domain names containing the trademarks or service marks of other widely known Australian businesses).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that <hotwir.com> and <hotire.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: January 23, 2008
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