Expedia Inc. v. Host for You c/o Vladimir Snezko
Claim Number: FA0805001191811
Complainant is Expedia Inc. (“Complainant”), represented by John
L. Slafsky, of Wilson Sonsini Goodrich & Rosati,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <expdeia.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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 19, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 20, 2008.
On May 20, 2008, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <expdeia.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
29, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 18, 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 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.
On June 24, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
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 <expdeia.com> domain name is confusingly similar to Complainant’s EXPEDIA mark.
2. Respondent does not have any rights or legitimate interests in the <expdeia.com> domain name.
3. Respondent registered and used the <expdeia.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Expedia, Inc., is a worldwide leader in providing online travel services such as booking airline, hotel, and car rental reservations. Complainant was founded and incorporated in 1996 and has been using the EXPEDIA mark as early as October 1996. Complainant registered the EXPEDIA mark with United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,220,719 registered January 26, 1999). Complainant operates the website at the <expedia.com> domain name using the EXPEDIA mark as well as several other versions.
Respondent registered the <expdeia.com> domain name on May 24, 2001. Respondent’s disputed domain name resolves to a website that displays several hyperlinks to various third-party websites, some of which are in direct competition with Complainant, as well as Complainant’s own website. In addition, Respondent registered numerous other domain names that are typosquatted versions of third parties’ well-known and registered trademarks.
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 trademark registration with the USPTO sufficiently establishes Complainant’s rights in the EXPEDIA mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
The Panel finds that Respondent’s <expdeia.com> domain name is confusingly similar to Complainant’s EXPEDIA mark under Policy ¶ 4(a)(i) because it merely transposes two letters in Complainant’s mark and adds the generic top-level domain (“gTLD”) “.com.” The addition of the “.com” gTLD does not distinguish the disputed domain name from Complainant’s EXPEDIA mark for the purposes of rendering it confusingly similar under Policy ¶ 4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Pier 1 Imps., Inc. v. Success Work, D2001-0419 (WIPO May 16, 2001) (finding that the domain name <peir1.com> is confusingly similar to the complainant's PIER 1 mark); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant must first establish a prima facie case that Respondent lacks rights and legitimate interests in the <expdeia.com> domain name. Once this prima facie case is established, the burden then shifts to Respondent to prove that Respondent has rights or legitimate interests in the disputed domain name. See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Respondent is using the <expdeia.com> domain name to display several hyperlinks to a variety of third-party websites, some of which are in direct competition with Complainant, as well as Complainant’s own website. The Panel infers that Respondent is using the disputed domain name to receive click-through fees, and thus, finds that Respondent has not made a bona fide offering of goods and services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”).
In addition, Respondent’s WHOIS information does not indicate that Respondent is commonly known by the <expdeia.com> domain name and there is no other evidence in the record to indicate otherwise. Furthermore, Complainant asserts Respondent is not authorized to use Complainant’s EXPEDIA mark and Respondent is not affiliated with Complainant in any way. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.”).
Finally, the Panel finds that Respondent lacks rights and legitimate interests in the <expdeia.com> domain name because the disputed domain name is merely a typosquatted version of Complainant’s EXPEDIA mark. See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant); see also Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of the complainant's mark).
The Panel concludes that Policy ¶ 4(a)(ii) is satisfied.
Based on the uncontested evidence presented, the Panel finds that Respondent receives click-through fees for the hyperlinks displayed on a website that resolves from the <expdeia.com> domain name. The Panel also finds that Respondent’s disputed domain name creates a likelihood of confusion as to Complainant’s affiliation with Respondent which constitutes registration and use in bad faith under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”).
Furthermore, Respondent is using the <expdeia.com> domain name to redirect Internet users to a website that contains hyperlinks to third-party websites in direct competition with Complainant which constitutes bad faith under Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Finally, the Panel finds that Respondent’s registration and use of a typosquatted version of Complainant’s EXPEDIA mark is in bad faith under Policy ¶ 4(a)(iii). See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).
Thus, the Panel concludes 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 the <expdeia.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: July 7, 2008
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