national arbitration forum

 

DECISION

 

TRAVELOCITY.COM LP v. Leing Maj

Claim Number: FA0905001260772

 

PARTIES

Complainant is TRAVELOCITY.COM LP (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Leing Maj (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <travelosity.com>, registered with Godaddy.com, Inc.

 

PANEL

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.

 

Honorable Paul A. Dorf (Ret.) as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on May 1, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 4, 2009.

 

On May 4, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <travelosity.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name.  Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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").

 

On May 8, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 28, 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@travelosity.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 2, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <travelosity.com> domain name is confusingly similar to Complainant’s TRAVELOCITY mark.

 

2.      Respondent does not have any rights or legitimate interests in the <travelosity.com> domain name.

 

3.      Respondent registered and used the <travelosity.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, TRAVELOCITY.COM LP, is a leading provider of consumer-directed travel services for the leisure and business traveler under its TRAVELOCITY mark.  Complainant holds a registration of its TRAVELOCITY mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2254700 issued June 22, 1999, filed January 28, 1997).

 

Respondent registered the <travelosity.com> domain name on August 7, 1997.  The disputed domain name resolves to a website that displays several hyperlinks to various third-party websites, some of which directly compete with Complainant.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

First, the Panel finds that the relevant date that rights begin in a registered mark under Policy ¶ 4(a)(i) is the filing date of the application for federal registration.  See Phoenix Mortgage Corp. v. Toggas, D2001-0101 (WIPO Mar. 30, 2001) (“The effective date of Complainant's federal rights is . . . the filing date of its issued registration. Although it might be possible to establish rights prior to that date based on use, Complainant has submitted insufficient evidence to prove common law rights before the filing date of its federal registration.”); see also Bob Jones Univ. v. Kane, FA 324692 (Nat. Arb. Forum Oct. 21, 2004) (finding that the complainant’s listing of first use of the BOB JONES UNIVERSITY mark on its USPTO registration information establishes that the complainant had used the mark continuously and extensively since the time of first use, thereby establishing rights in the mark pursuant to Policy ¶ 4(a)(i)).

 

Here, Complainant’s filing date of January 28, 1997 for its application for registration for its TRAVELOCITY mark, which subsequently registered with the USTPO, predates Respondent’s registration date of August 7, 1997 for the <travelosity.com> domain name.  Therefore, the Panel finds that Complainant has sufficiently established rights in the TRAVELOCITY mark under Policy ¶ 4(a)(i).  See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); 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.").

 

Respondent’s <travelosity.com> domain name consists of a common misspelling of Complainant’s TRAVELOCITY mark by replacing the “c” with an “s” and merely adds the generic top-level domain (“gTLD”) “.com” to the misspelled mark.  The Panel finds that none of these alterations to Complainant’s mark sufficiently distinguish the disputed domain from Complainant’s mark.  Thus, the Panel finds that the <travelosity.com> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).  See The Royal Bank of Scotland Grp. plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (“The Panel finds that merely by misspelling Complainants’ mark, Respondent has not sufficiently differentiated the <privelage.com> domain name from the PRIVILEGE mark under Policy ¶ 4(a)(i).”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

At the outset, Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name.  The burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain name.  The Panel finds that Complainant has sufficiently made its prima facie showing under Policy ¶ 4(a)(ii).  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’s confusingly similar <travelosity.com> domain name resolves to a website that displays several hyperlinks to various websites, some of which are in direct competition with Complainant’s business.  The Panel infers that Respondent receives click-through fees for such hyperlinks.  Therefore, the Panel finds that Respondent’s use of the disputed domain name, along with the aforementioned hyperlinks, diverts Internet users to competing websites for commercial gain, and thus is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4 (c)(iii).  See 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 confusingly similar 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)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).

 

Furthermore, Respondent is listed in the WHOIS information as “Leing Maj,” which does not indicate that Respondent is commonly known by the <travelosity.com> domain name.  Respondent has not offered any evidence to indicate otherwise.  The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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.”).

 

Finally, the Panel finds that Respondent is taking advantage of a common misspelling of Complainant’s TRAVELOCITY mark by diverting Internet users, commonly referred to as typosquatting, and thus is further evidence that Respondent lacks rights and legitimate interests in the <travelosity.com> domain name under Policy ¶ 4(a)(ii).  See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the 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 finds that Policy ¶ 4(a)(ii) has been satisfied.

 

 

Registration and Use in Bad Faith

 

Respondent’s <travelosity.com> domain name resolves to a website that displays several hyperlinks to various third-party websites, some of which directly compete with Complainant.  The Panel finds that Respondent’s utilization of these hyperlinks to divert Internet users to websites that directly compete with Complainant disrupts Complainant’s business and constitutes bad faith registration and use under Policy ¶ 4(b)(iii).  See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).

 

In addition, Respondent is using the <travelosity.com> domain name and the aforementioned hyperlinks to presumably collect click-through fees.  Accordingly, the Panel finds that Respondent’s use of the disputed domain name to commercially gain from that use creates a likelihood of confusion as to Complainant’s affiliation with the disputed domain name and constitutes bad faith registration and use under Policy ¶ 4(b)(iv).  See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name).

 

Finally, the Panel finds that Respondent is engaged in typosquatting because Respondent is taking advantage of a common misspelling of Complainant’s TRAVELOCITY mark by diverting Internet users to its website, and thus is evidence of bad faith registration and use under Policy ¶ 4(a)(iii).  See Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location’. . . through Respondent’s persistent practice of ‘typosquatting’”); see also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark).

 

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <travelosity.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Honorable Paul A. Dorf (Ret.), Panelist

Dated: June 15, 2009

 

 

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