TRAVELOCITY.COM LP v. Forsyte Corporation
Claim Number: FA0907001275130
Complainant is TRAVELOCITY.COM LP (“Complainant”), represented by Brody
Stout, of CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <travelocitycreditcard.com> and <travetocity.com>. The <travelocitycreditcard.com> domain name is registered with Abdomainations.ca. The <travetocity.com> domain name is registered with Availabledomains.ca.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 22, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 23, 2009.
On July 22, 2009, Abdomainations.ca, confirmed by e-mail to the National Arbitration Forum that the <travelocitycreditcard.com> domain name is registered with Abdomainations.ca and that Respondent is the current registrant of the name. Abdomainations.ca has verified that Respondent is bound by the Abdomainations.ca 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 July 22, 2009, Availabledomains.ca confirmed by e-mail to the National Arbitration Forum that the <travetocity.com> domain name is registered with Availabledomains.ca and that Respondent is the current registrant of the name. Availabledomains.ca has verified that Respondent is bound by the Availabledomains.ca 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 July 24, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 13, 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@travelocitycreditcard.com and postmaster@travetocity.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 19, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <travelocitycreditcard.com> and <travetocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY mark.
2. Respondent does not have any rights or legitimate interests in the <travelocitycreditcard.com> and <travetocity.com> domain names.
3. Respondent registered and used the <travelocitycreditcard.com> and <travetocity.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, TRAVELOCITY.COM
LP, is a leading provider of consumer-direct travel services for the leisure
and business traveler. Complainant began
conducting business under its TRAVELOCITY mark in 1996. Complainant holds a registration of the
TRAVELOCITY mark with the United States Patent and Trademark Office (“USPTO”)
(Reg. No. 2,254,700 issued June 22, 1999).
Respondent registered the <travelocitycreditcard.com> domain name on October 21, 2005 and registered the <travetocity.com> domain name on October 31, 2005. Both of the disputed domain names resolve to similar websites each of which displays hyperlinks to third-party websites, some of which directly compete with Complainant’s travel services.
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 has sufficiently
established rights in the TRAVELOCITY mark under Policy ¶ 4(a)(i) through its
registration of the mark with the USPTO (Reg.
No. 2,254,700 issued June 22, 1999). See Miller Brewing
Respondent’s <travelocitycreditcard.com> domain name contains Complainant’s entire mark, merely adds the generic phrase “credit card,” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that none of these additions to Complainant’s mark sufficiently distinguish this disputed domain name from Complainanant’s mark. Therefore, the Panel finds that the <travelocitycreditcard.com> domain name is confusingly similar to Complainant’s TRAVELOCITY mark under Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several domain names incorporating the complainant’s entire EXPERIAN mark and merely adding the term “credit” were confusingly similar to the complainant’s mark); 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 <travetocity.com> domain name contains a misspelling of Complainant’s TRAVELOCITY mark and merely adds the gTLD “.com.” The Panel finds that the <travetocity.com> domain name is confusingly similar to Complainant’s TRAVELOCITY mark under Policy ¶ 4(a)(i) because these alterations to Complainant’s mark do not sufficiently distinguish the <travetocity.com> domain name from Complainant’s TRAVELOCITY mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Jerry Damson, Inc., supra.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain names. Upon making such a sufficient showing, the burden then shifts to Respondent and Respondent must establish that it has rights or legitimate interests in the disputed domain names. 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).”).
The WHOIS information for <travelocitycreditcard.com> and <travetocity.com> domain names lists “Forsyte Corporation” as the registrant, which does not indicate that Respondent is commonly known by either of the disputed domain names. Respondent has not offered any evidence to indicate otherwise. The Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Both of the <travelocitycreditcard.com> and <travetocity.com> domain names resolve to similar websites that feature hyperlinks to third-party websites, some of which directly compete with Complainant’s travel business. The Panel presumes that Respondent receives click-through fees for displaying these hyperlinks. Therefore, the Panel finds that Respondent’s use of the disputed domain names is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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 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)).
Furthermore, Complainant asserts that Respondent is engaging
in typosquatting through its use of both of the disputed domain names. A respondent engages in typosquatting when it
registers a domain name that is a common misspelling of a complainant’s mark
and takes advantage of that misspelling.
However, in this case only the <travetocity.com>
domain name contains a misspelling of Complainant’s TRAVELOCITY mark. Therefore, the Panel finds that Respondent
has engaged in typosquatting through its use of the <travetocity.com> domain name and such an engagement is
further evidence that Respondent lacks rights and legitimate interests in the <travetocity.com> domain name under
Policy ¶ 4(a)(ii). See 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’”); see also Microsoft Corp. v. Domain Registration
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s confusingly similar <travelocitycreditcard.com> and <travetocity.com> domain names
resolve to similar websites that display hyperlinks to third-party websites,
some of which redirect Internet users to the websites of Complainant’s
competitors in the travel services industry.
The Panel finds that this use of the disputed domain names by Respondent
disrupts Complainant’s business. The
Panel further finds that such a disruption constitutes bad faith registration
and use under Policy ¶ 4(b)(iii). See Tesco
Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13,
2007) (concluding that the use of a confusingly similar domain name to attract
Internet users to a directory website containing commercial links to the
websites of a complainant’s competitors represents bad faith registration and
use under Policy ¶ 4(b)(iii)); see
also Am. Online, Inc. v. Tapia,
FA 328159 (Nat. Arb. Forum Dec. 1, 2004) (“Respondent is referring Internet
traffic that seeks out the <aol.tv>
domain name to a competitor’s news site.
The Panel strongly finds that appropriating Complainant’s mark to refer
customers seeking Complainant to Complainant’s competitors is evidence of bad
faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
The Panel finds that Respondent’s
use of the aforementioned hyperlinks on the websites resolving from the confusingly
similar disputed domain names creates a likelihood of confusion as to
Complainant’s affiliation with the disputed domain names. The Panel further finds that Respondent’s
presumed receipt of click-through fees allows Respondent to commercially gain
from this likelihood of confusion.
Therefore, the Panel finds that Respondent’s actions constitute bad
faith registration and use under Policy ¶ 4(b)(iv). See
Finally, Respondent’s engagement in typosquatting through its registration and use of the <travetocity.com> domain name constitutes bad faith registration and use under Policy ¶ 4(a)(iii) because Respondent is taking advantage of a common misspelling of Complainant’s TRAVELOCITY mark. 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)).
The Panel finds 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 <travelocitycreditcard.com> and <travetocity.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: September 2, 2009
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