national arbitration forum

 

DECISION

 

TRAVELOCITY.COM LP v. Ali Aziz

Claim Number: FA0905001260783

 

PARTIES

Complainant is TRAVELOCITY.COM LP (“Complainant”), represented by , of CitizenHawk, Inc., California, USA.  Respondent is Ali Aziz (“Respondent”), Pakistan.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <tralvelocity.com> and <travolocity.com>, registered with Dotregistrar.

 

PANEL

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.

 

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, Dotregistrar confirmed by e-mail to the National Arbitration Forum that the <tralvelocity.com> and <travolocity.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 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@tralvelocity.com and postmaster@travolocity.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 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

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 July 3, 2001) in connection with its online travel business.

 

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 May 6, 2002. 

 

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.

 

FINDINGS

(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.

 

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 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.

 

Identical and/or Confusingly Similar

 

By registering its TRAVELOCITY.COM mark with the USPTO, Complainant has established rights in the mark pursuant to Policy ¶ 4(a)(i).  See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that a complainant established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO);  see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether a complainant has registered its trademark in the country of a respondent’s residence).

 

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 July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive);  see also Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004):

 

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).

 

Rights or Legitimate Interests

 

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 Jan. 4, 2008):

 

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 Oct. 1, 2002):

 

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 Feb. 10, 2003) (stating that the fact that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” is a factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003): “Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’  Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”

 

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 Dec. 31, 2002) (finding that a respondent’s diversionary use of a complainant’s marks to send Internet users to a website which displayed links to a complainant’s competitors, was not a bona fide offering of goods or services); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that a respondent was not using a domain name within the parameters of Policy ¶ 4(c)(i) or (iii) where that respondent used the domain name to take advantage of a complainant's mark by diverting Internet users to a competing commercial site).

 

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 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 and legitimate interests in 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 thus finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

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 Mar. 7, 2007); see also TRAVELOCITY.COM v. Ali Aziz, FA 1245560 (Nat. Arb. Forum March 16, 2009); further see Am. Airlines v. Ali Aziz, FA 1247063 (Nat. Arb. Forum March 30, 2009).  These previous decisions demonstrate 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 Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where a respondent had been subject to numerous UDRP proceedings wherein panels ordered the transfer of disputed domain names containing the trademarks of complainants).

 

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 June 12, 2000) (finding that a respondent diverted business from a complainant to a competitor’s website within the contemplation of Policy ¶ 4(b)(iii)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that a respondent registered and used the domain name <eebay.com> in bad faith where that respondent used the domain name to promote competing auction sites).

 

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 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.

 

See also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that a respondent’s registration of a domain name to redirect Internet users to banner advertisements constituted bad faith use of the domain name).

 

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 Aug. 21, 2000): “[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.  We therefore conclude that Respondent’s typo-squatting behavior is evidence that Respondent registered and is using the <tralvelocity.com> and <travolocity.com> domain names in bad faith pursuant to Policy ¶ 4(a)(iii).  See 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).

 

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)).

 

For all of these reasons, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

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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