TRAVELOCITY.COM LP v. Ali Aziz
Claim Number: FA0905001260783
Complainant is TRAVELOCITY.COM LP (“Complainant”), represented by , of CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <tralvelocity.com> and <travolocity.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
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 3, 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 holds a registration with the United States
Patent and Trademark Office (“USPTO”) for the TRAVELOCITY.COM trademark (Reg.
No. 2,466,132 issued
Respondent has no license from or agreement with Complainant authorizing Respondent to use the TRAVELOCITY.COM mark.
Respondent registered the <travolocity.com>
domain name on April 15, 2002, and the <tralvelocity.com> domain name on
Respondent uses the disputed domain names to resolve to websites displaying links to third-party sites offering travel services in competition with the business of Complainant.
Respondent has also been a respondent in other UDRP
proceedings in which disputed domain names were transferred to
complainants.
Respondent’s <tralvelocity.com> and <travolocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark.
Respondent does not have any rights to or legitimate interests in the <tralvelocity.com> and <travolocity.com> domain names.
Respondent registered and uses the <tralvelocity.com> and <travolocity.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 rights to or legitimate interests in respect of the domain names; and
(3) Both of 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.
By registering its TRAVELOCITY.COM mark with the USPTO,
Complainant has established rights in the mark pursuant to Policy ¶ 4(a)(i).
The <tralvelocity.com> and <travolocity.com>
domain names are misspellings of Complainant’s TRAVELOCITY.COM mark. The former adds the letter “l” and the latter
replaces the letter “e” with “o.” Such
minor changes result in confusing similarity between Complainant’s distinctive
mark and Respondent’s domain names pursuant to Policy ¶ 4(a)(i).
See Reuters Ltd. v. Global Net 2000, Inc.,
D2000-0441 (WIPO
The mere addition of a single letter to the
complainant’s mark does not remove the respondent’s domain names from the realm
of confusing similarity in relation to the complainant’s mark pursuant to
Policy ¶ 4(a)(i).
The Panel therefore finds that Complainant has satisfied Policy ¶ 4(a)(i).
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima
facie case that Respondent has no rights to or legitimate interests in the
disputed domain names. If Complainant’s
allegations establish such a prima facie case, the burden shifts to
Respondent to show that it does indeed have rights to or legitimate interests
in the disputed domain names, by reference to the guidelines in Policy ¶
4(c). See Domtar, Inc. v. Theriault.,
FA 1089426 (Nat. Arb. Forum
It
is well established that, once a complainant has made out a prima facie case in
support of its allegations, the burden shifts to respondent to show that it
does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.
Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no
rights to or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). Because
no response was submitted in this case, we may presume that Respondent has no
rights to or legitimate interests in the disputed domain names. See G.D.
Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
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).
However, we will
examine the record in consideration of the factors listed in Policy ¶ 4(c) to
determine if there is any basis for concluding that Respondent has any rights
or interests cognizable under the Policy.
We begin by noting that there is no evidence in the record before
us suggesting that Respondent is commonly known by either of the disputed
domain names. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the TRAVELOCITY.COM mark, and the pertinent WHOIS information identifies
Respondent only as “Ali Aziz.” Thus, we conclude that Respondent has not
established rights to or legitimate interests in either of the disputed domain
names under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
We also observe that Respondent does not deny the allegation
of the Complaint that it is using the <tralvelocity.com> and <travolocity.com>
domain names, which we have already concluded are confusingly similar to
Complainant’s TRAVELOCITY.COM mark, to
redirect Internet users interested in Complainant’s products to third-party
websites, and that these websites are in competition with Complainant’s
business. This use is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a noncommercial or fair use of the disputed domain
names pursuant to Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb.
Forum
Additionally, the circumstances presented by the facts spelled
out in the Complaint compel us to visit the topic of typo-squatting, which
occurs where a respondent purposefully includes typographical errors in a domain
name in order to divert Internet users who commit those errors. The <tralvelocity.com> and <travolocity.com>
domain names plainly take advantage of the typo-squatting technique to ensnare Internet
users who inadvertently mistype Complainant’s TRAVELOCITY.COM mark. Respondent’s typo-squatting behavior is
further evidence that it does not have rights to or legitimate interests in the
disputed domain names pursuant to Policy ¶ 4(a)(ii). See LTD Commodities
LLC v. Party Night, Inc., FA
165155 (Nat. Arb. Forum
The Panel thus finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has been the respondent in previous UDRP
decisions wherein disputed domain names were transferred to the respective
complainants in those cases. See, e.g., Cingular Wireless v. Ali Aziz, FA 892865
(Nat. Arb. Forum
We also take note of the fact that Respondent uses the disputed domain names
to resolve to websites containing links to third-party sites that divert
Internet users to Complainant’s business competitors. This use is evidence of bad faith
registration and use of the contested domains pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller,
D2000-0297 (WIPO
The website that resolves from the <tralvelocity.com> and <travolocity.com>
domain names displays links to websites in competition with Complainant’s
business. We infer from this that
Respondent receives either pay-per-click fees or advertising fees for these
advertisements. Because the disputed
domain names are confusingly similar to Complainant’s marks, Internet users are
likely to become confused as to the possibility of Complainant’s affiliation with
or sponsorship of the disputed domain names and resolving websites. Respondent evidently seeks to profit from
this confusion by hosting advertisements on the resolving websites. This behavior is evidence of bad faith
registration and use of the contested domains pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat.
Arb. Forum
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.
See also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO
Finally, we may consider the totality of the circumstances
when conducting a Policy ¶ 4(a)(iii) analysis, and
that analysis is not limited to the enumerated factors in Policy ¶ 4(b). See Do The Hustle, LLC
v. Tropic Web, D2000-0624 (WIPO
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).
See also Dermalogica, Inc.
v. Domains to Develop, FA 175201 (Nat. Arb. Forum
For all of these reasons, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
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 <tralvelocity.com> and <travolocity.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: June 16, 2009
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