TRAVELOCITY.COM LP v. Ali Aziz
Claim Number: FA0902001245560
Complainant is TRAVELOCITY.COM LP (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <taravelocity.com>, <trabelocity.com>, <tracvelocity.com>, <tralelocity.com>, <traqvelocity.com>, <travcelocity.com>, <traveiocity.com>, <travel0city.com>, <travelocioty.com>, <travelocityu.com>, and <travelocvity.com>, registered with Dotregistrar.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 30, 2009; the National Arbitration Forum received a hard copy of the Complaint on February 2, 2009.
On February 3, 2009, Dotregistrar confirmed by e-mail to the National Arbitration Forum that the <taravelocity.com>, <trabelocity.com>, <tracvelocity.com>, <tralelocity.com>, <traqvelocity.com>, <travcelocity.com>, <traveiocity.com>, <travel0city.com>, <travelocioty.com>, <travelocityu.com>, and <travelocvity.com> domain names are registered with Dotregistrar and that Respondent is the current registrant of the names. Dotregistrar has verified that Respondent is bound by the Dotregistrar 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").
On February
5, 2009, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
February 25, 2009
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 postmaster@taravelocity.com, postmaster@trabelocity.com, postmaster@tracvelocity.com, postmaster@tralelocity.com, postmaster@traqvelocity.com, postmaster@travcelocity.com, postmaster@traveiocity.com, postmaster@travel0city.com, postmaster@travelocioty.com, postmaster@travelocityu.com, and postmaster@travelocvity.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 2, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant provides travel services and products through its various websites.
Since 1996, Complainant has operated under the TRAVELOCITY mark and has registered the mark with the United States Patent and Trademark Office (“USPTO”)
(Reg. No. 2,254,700, issued June 22, 1999).
Respondent does not have permission or authorization to use Complainant’s mark.
Respondent registered the disputed domain names on the dates
here indicated: <taravelocity.com> (April 3, 2002), <trabelocity.com>
(April 13, 2002), <tracvelocity.com> (April 3, 2002), <tralelocity.com>
(April 3, 2002), <traqvelocity.com> (April 3, 2002), <travcelocity.com>
(April 3, 2002), <traveiocity.com> (April 3, 2002), <travel0city.com>
(December 22, 2001), <travelocioty.com> (April 3, 2002), <travelocityu.com>
(January 21, 2002), and <travelocvity.com> (April 3, 2002).
Each disputed domain
name resolves to a website that displays pay-per-click advertising, some of
which promote the goods and services of Complainant’s business competitors.
By registering and using the instant disputed domain names
as described, Respondent is engaged in typo-squatting.
Respondent has been the respondent in other UDRP proceedings in which disputed domain names were transferred from Respondent to the respective complainants in those cases. See Cingular Wireless II, LLC v. Ali Aziz, FA 892865 (Nat. Arb. Forum Mar. 7, 2007); see also Krause Publ’n, Inc. v. Ali Aziz, D2008-1353 (WIPO Oct. 23, 2008).
Respondent’s <taravelocity.com>, <trabelocity.com>, <tracvelocity.com>, <tralelocity.com>, <traqvelocity.com>, <travcelocity.com>, <traveiocity.com>, <travel0city.com>, <travelocioty.com>, <travelocityu.com>, and <travelocvity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY mark.
Respondent does not have any rights to or legitimate interests in the <taravelocity.com>, <trabelocity.com>, <tracvelocity.com>, <tralelocity.com>, <traqvelocity.com>, <travcelocity.com>, <traveiocity.com>, <travel0city.com>, <travelocioty.com>, <travelocityu.com>, and <travelocvity.com> domain names.
Respondent registered and uses the <taravelocity.com>, <trabelocity.com>, <tracvelocity.com>, <tralelocity.com>, <traqvelocity.com>, <travcelocity.com>, <traveiocity.com>, <travel0city.com>, <travelocioty.com>, <travelocityu.com>, and <travelocvity.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no right to or legitimate interest in respect of the domain names; and
(3) the domain names were registered and are being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s registration of its TRAVELOCITY mark with the
USPTO adequately demonstrates its rights in the mark pursuant to Policy ¶ 4(a)(i). See AOL
LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding
that where a complainant submitted evidence of its registration of a mark with
the USPTO, “such evidence establishes complainant’s rights in the mark pursuant
to Policy ¶ 4(a)(i).”); see also Disney Enters., Inc. v.
Kudrna, FA 686103 (Nat. Arb. Forum June 2, 2006) (finding that a
complainant’s registration of the DISNEY trademark with the USPTO prior to a
respondent’s registration of a disputed domain name is sufficient to prove that
that complainant has rights in the mark pursuant to Policy ¶ 4(a)(i)).
Respondent’s <taravelocity.com>, <trabelocity.com>, <tracvelocity.com>, <tralelocity.com>, <traqvelocity.com>, <travcelocity.com>, <traveiocity.com>, <travel0city.com>, <travelocioty.com>, <travelocityu.com>, and <travelocvity.com> domain names contain Complainant’s TRAVELOCITY mark and make the following changes: (1) various misspellings and/or additions/removals of letters or numbers; and (2) adding the generic top-level domain (“gTLD”) “.com.” The addition of a gTLD is not relevant in a Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Moreover, misspellings and/or additions of letters or numbers to a mark of the kind presented here fail to render the disputed domain names meaningfully distinct from the mark. Therefore, the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to a complainant’s mark).
The Panel thus finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights to and legitimate interests in the disputed domain names. From the allegations of the Complaint, we conclude that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant
must make a prima facie showing that Respondent does not have rights or
legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the
burden shifts to Respondent to show that it does have rights or legitimate
interest in the subject domain names.
See also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must first make out a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have rights or legitimate interests in a domain name).
Because Respondent has not responded to the Complaint, we may presume that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004):
Respondent’s
failure to respond to the Complaint functions as an implicit admission that
[Respondent] lacks rights and legitimate interests in the disputed domain
name. It also allows the Panel to accept
all reasonable allegations set forth…as true.
However, we elect to examine the record to determine whether there is any basis for concluding that Respondent has any rights to or legitimate interests in the disputed domain name as measured by the factors outlined in Policy ¶ 4(c).
We first note that the pertinent WHOIS information lists
Respondent as “Ali Aziz.” Additionally,
Complainant asserts, and Respondent does not deny, that Respondent is not
permitted or authorized to use Complainant’s mark. We therefore conclude that Respondent is not
nor has it ever been commonly known by the disputed domain names within the
meaning of Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that a respondent was not
commonly known by the <cigaraficionada.com> domain name under Policy ¶
4(c)(ii) based on the pertinent WHOIS information and other evidence in the
record); see also Coppertown Drive-Thru
Sys., LLC v. Snowden, FA 715089 (Nat.
Arb. Forum July 17, 2006) (concluding that a respondent was not
commonly known by the <coppertown.com> domain name where there was no
evidence in the record, including the relevant WHOIS information, suggesting
that that respondent was commonly known by the disputed domain name).
We also observe that there is no
dispute as to complainant’s allegation to the effect that Respondent’s disputed
domain names resolve to websites featuring click-through advertising links, and
that some of these links lead Internet users to Complainant’s business competitors. We may presume from these circumstances that
Respondent has engaged in this activity in order to receive referral fees. Therefore, we conclude that Respondent cannot
claim to be engaged in a bona fide
offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use of the disputed domain name under
Policy ¶ 4(c)(iii).
See Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat.
Arb. Forum
Sept. 14, 2006) (finding that a respondent’s use of a complainant’s LIFESTYLE
LOUNGE mark to redirect Internet users to that respondent’s website for
commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to
Policy ¶ 4(c)(iii)); see also
Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007)
(holding that the operation of a pay-per-click website at a contested domain
name was not a bona fide offering of
goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair
use under Policy ¶ 4(c)(iii)).
Finally in this connection, Complainant asserts, without
contradiction from Respondent, that Respondent is engaged in typo-squatting by
registering and using the instant disputed domain names as described in the
Complaint. “Typo-squatting” describes a
situation in which a domain name is registered with the intent of diverting
Internet users to a website by capitalizing on common typographical errors. Here, Respondent apparently deliberately misspelled
and added letters and/or numerals to various aspects of Complainant’s
mark. Respondent’s typo-squatting is
itself evidence that Respondent lacks rights to and legitimate interests in the
contested domain names pursuant to Policy ¶ 4(a)(ii). See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of a complainant's LTD COMMODITIES
mark and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that a
respondent lacked rights to and legitimate interests in a disputed
domain names because it “engaged in the practice of typosquatting
by taking advantage of Internet users who attempt to access Complainant's
<indymac.com> website but mistakenly misspell Complainant's mark by
typing the letter ‘x’ instead of the letter ‘c’”).
The Panel therefore finds that Policy ¶ 4(a)(ii) has been satisfied.
There is no dispute that Respondent has been a respondent in other UDRP proceedings in which disputed domain names were transferred from to the complainants in those cases. See Cingular Wireless II, LLC v. Ali Aziz, FA 892865 (Nat. Arb. Forum Mar. 7, 2007); see also Krause Publ’n, Inc. v. Ali Aziz, D2008-1353 (WIPO Oct. 23, 2008). This constitutes a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii). See Arai Helmet Americas, Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005 (finding that “Respondent has registered the disputed domain name, <aria.com>, to prevent Complainant from registering it” and taking notice of another Policy proceeding against the respondent to find that “this is part of a pattern of such registrations”); see also Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because a domain name prevented a complainant from reflecting its mark in a domain name and because a respondent had several adverse decisions against it in previous UDRP proceedings, which established a pattern of cyber-squatting).
We are also persuaded that Respondent’s employment of typo-squatting
constitutes evidence of bad faith registration and use of the contested domain
names pursuant to Policy ¶ 4(a)(iii). See K.R. USA, INC.
v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that a respondent’s registration
and use of the domain names <philadelphiaenquirer.com> and
<tallahassedemocrat.com> capitalized on the typographical errors of
Internet users seeking sites linked to a complainant's THE PHILADELPHIA
INQUIRER and TALLAHASSEE DEMOCRAT marks, thus demonstrating bad faith typo-squatting
pursuant to Policy ¶ 4(a)(iii)); see also Zone Labs, Inc. v. Zuccarini,
FA 190613 (Nat. Arb. Forum Oct. 15, 2003):
Respondent’s
registration and use of [the <zonelarm.com> domain name] that capitalizes
on the typographical error of an Internet user is considered typosquatting.
Typosquatting, itself is evidence of bad faith registration and use pursuant to
Policy ¶ 4(a)(iii).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <taravelocity.com>, <trabelocity.com>, <tracvelocity.com>, <tralelocity.com>, <traqvelocity.com>, <travcelocity.com>, <traveiocity.com>, <travel0city.com>, <travelocioty.com>, <travelocityu.com>, and <travelocvity.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 16, 2009
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