National Arbitration Forum

 

DECISION

 

Travelocity.com LP v. Falsol Enterprises c/o Desmond Falsol

Claim Number: FA0907001275137

 

PARTIES

Complainant is Travelocity.com LP (“Complainant”), represented by Brody Stout, of CitizenHawk, Inc., California, USA.  Respondent is Falsol Enterprises c/o Desmond Falsol (“Respondent”), India.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <teavelocity.com>, <trarvelocity.com>, <trasvelocity.com>, <travelocityy.com>, <travelpcity.com>, <travwlocity.com>, <ttavelocity.com>, and <yravelocity.com>, registered with Dotregistrar.

 

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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

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 23, 2009, Dotregistrar confirmed by e-mail to the National Arbitration Forum that the <teavelocity.com>, <trarvelocity.com>, <trasvelocity.com>, <travelocityy.com>, <travelpcity.com>, <travwlocity.com>, <ttavelocity.com>, and <yravelocity.com> domain names are registered with Dotregistrar and that the 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 July 29, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 18, 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@teavelocity.com, postmaster@trarvelocity.com, postmaster@trasvelocity.com, postmaster@travelocityy.com, postmaster@travelpcity.com, postmaster@travwlocity.com, postmaster@ttavelocity.com, and postmaster@yravelocity.com by e-mail.

 

Respondent's Response was received in hard copy only on August 18, 2009.  However, in that no hard copy was received by the Response deadline, the Response is considered deficient under ICANN Rule 5.

 

On August 24, 2009, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Richard Hill as Panelist.

 

RELIEF SOUGHT

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

 

PARTIES’ CONTENTIONS

A. Complainant

The Complainant alleges that it is a leading provider of consumer-direct travel services for the leisure and business traveler.  It markets and distributes travel-related products and services directly to individuals through Travelocity and its various brand Web sites and contact centers, and Web sites owned by its supplier and distribution partners.  The Complainant’s web site at <travelocity.com> attracts an average of 8 million users monthly.  It enjoys wide consumer recognition and acceptance of its brand.

 

The Complainant states that it owns registered US trademarks for TRAVELOCITY and for TRAVELOCITY.COM (registered in 1997).  Further, it is the owner of numerous federal trademark and/or service mark registrations in the United States that consist of or include the word TRAVELOCITY.

 

According to the Complainant, the disputed domain names are confusingly similar to its trademark because they differ by only a single character from the Complainant's marks, or because they differ by only the juxtaposition of two characters when compared to the Complainant's marks.  The Complainant cites UDRP cases to support its position.

 

The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain names for the following reasons (and it cites UDRP cases to support its position):

a)         The Respondent has not been commonly known by the disputed domain names.

b)        The Respondent is not sponsored by or legitimately affiliated with the Complainant in any way

c)         The Complainant has not given Respondent permission to use the Complainant's marks in a domain name.

d)        The Respondent is using (some or all of) the disputed domain names to redirect unsuspecting Internet users to websites featuring generic links to third-party websites, some of which directly compete with the Complainant's business.  Presumably, the Respondent receives pay-per-click fees from these linked websites.  As such, the Respondent is not using the domain names to provide a bona fide offering of goods or services as allowed under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use as allowed under Policy ¶ 4(c)(iii).

e)         The Respondent is using (some or all of) the disputed domain names to redirect Internet users to websites operated by the Complainant's competitors.  Presumably, the Respondent receives consideration from those firms for driving traffic to them.  As such, the Respondent is not using the domain names to provide a bona fide offering of goods or services as allowed under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use as allowed under Policy ¶ 4(c)(iii).  Furthermore, the Respondent is causing confusion amongst consumers and tarnishing Complainant's good name in the marketplace.

f)          The disputed domain names were registered in 2000, well after the Complainant’s marks.

 

The Complainant alleges that the Respondent registered and is using the disputed domain names in bad faith for the following reasons (and it cites UDRP cases to support its position):

a)         The Respondent's typo-squatting behavior is, in and of itself, evidence of bad faith, because he 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 his persistent practice of typo-squatting.

b)        The Respondent has caused the websites reachable by (some or all of) the disputed domain names to display the Complainant's marks spelled correctly (even though the domain name is a misspelled version of the same mark).  This shows that misspelling was intentionally designed to improperly capitalize on the Complainant's famous marks.

c)         The Respondent has caused the websites reachable by (some or all of) the disputed domain names to display content and/or keywords directly related to the Complainant’s business.  This shows that misspelling was intentionally designed to improperly capitalize on the Complainant's famous marks.

 

B. Respondent

The Respondent alleges that the Complainant’s representative in this proceeding is itself a typo-squatting company.  They claim to "recover" the domain to the Complainant but in return force the Complainant into an agreement allowing the representative to be the typo-squatter instead of the Respondent for a period of many years after recovering the domain.

 

According to the Respondent, the Complainant’s representative would benefit as a typo-squatter from the domain names through the Complainant’s affiliate program exactly like a so called typo-squatter would do.  If the Panel views typo-squatting as not allowable, then they should view the Complainant’s representative as the grand monopoly of typo-squatting and reject this claim.

 

The Respondent goes on to provide an example of such alleged behaviour by the Complainant’s representative, and to allege that the representative has been barred from operating in the state of California.  For the reasons set forth below, the Panel considers that these arguments are not relevant, so they will not be summarized in any detail here.

 

The Respondent does not present any arguments or evidence with respect to the three elements of the Policy.

 

The Respondent concludes that the disputed domain names should not be transferred to the Complainant, because to do so would in fact result in their being transferred to the typo-squatting representative of the Complainant.

 

FINDINGS

The Complainant is a well-known company providing online travel services.

 

It owns marks for the string TRAVELOCITY.

 

The disputed domain names differ from the Complainant’s mark by only a single character or by only the juxtaposition of two characters.

 

The Respondent is using the disputed domain names to point to web sites offering products and services that directly compete with those offered by the Complainant.

 

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”

 

Before proceeding to discuss the substance of the case, the Panel will first deal with two procedural matters.

 

Late Response

 

The hard copy version of the Respondent’s Response was received late.  Thus, the Forum does not consider the Response to be in compliance with ICANN Rule 5.  In accordance with paragraph 10 of the Rules, the Panel, at its discretion, may choose whether to accept and consider this Response.  The Panel chooses to accept the Response.  See J.W. Spear & Sons PLC v. Fun League Mgmt., FA 180628 (Nat. Arb. Forum Oct. 17, 2003) (finding that where respondent submitted a timely response electronically, but failed to submit a hard copy of the response on time, “[t]he Panel is of the view that given the technical nature of the breach and the need to resolve the real dispute between the parties that this submission should be allowed and given due weight”).

 

Allegations against the Complainant’s Representative

 

The Respondent argues that the disputed domain names should not be transferred to the Complainant, because this would be tantamount to transferring them to the Complainant’s representative who, according to the Respondent, is itself a typo-squatter.

 

The Respondent does not indicate which element of the Policy would justify such action by the Panel.

 

Although the Policy does not explicitly deal with the matter of representation, it has long been accepted that parties may choose a representative to assist them in the proceedings, it being understood that, if the Complainant prevails, the disputed domain names would be transferred to the Complainant, not to the Complainant’s representative.  The Complainant may then do what it wishes with the disputed domain names, including transferring them to its representative.

 

Thus the Respondent’s arguments are ill-founded.  If the Complainant were to transfer the disputed domain names to its Representative, that could not possible constitute typo-squatting, because the Complainant (as the owner of the mark) is perfectly free to transfer any of its domain names to any other party for any reason that it sees fit.

 

Thus the Panel rejects the Respondent’s arguments and request regarding the Complainant’s representative.

 

Having dealt with these issues, the Panel will proceed to consider the three elements of the Policy.

 

Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2)   the 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

 

The Complainant contends that the disputed domain names are confusingly similar to its TRAVELOCITY mark because all of the disputed domain names merely contain misspellings of its mark and add the generic top-level domain (“gTLD”) “.com.”  The Panel agrees and finds that the disputed domain names are confusingly similar to the Complainant’s TRAVELOCITY mark under Policy ¶ 4(a)(i).  See Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar); 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).”); 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.”).

 

Rights or Legitimate Interests

 

The Complainant argues (and provides evidence to support its arguments) that the Respondent is using the disputed domain names to point to websites that display hyperlinks to third-party websites, some of which directly compete with Complainant’s travel services business.  The Complainant further argues that the Respondent receives click-through fees for these hyperlinks.  From the evidence provided, the Panel finds that the Respondent’s use of the disputed domain names does not represent 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 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)).

 

The Complainant asserts that the Respondent is engaging in typo-squatting, and the Respondent does not effectively contest that.  Indeed, the evidence clearly shows that the Respondent is engaging in typo-squatting.  This is further evidence that the Respondent lacks rights and legitimate interests in the disputed domain names 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 typo-squatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also 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 Complainant's LTD COMMODITIES mark and this “‘typo-squatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).

 

Further, for the reasons set forth below, the Panel finds that the Respondent is engaging in various actions which demonstrate that he has no rights or legitimate interests in the disputed domain names.

 

Registration and Use in Bad Faith

 

The Complainant contends (and provides evidence to support its position) that the websites that resolve from the disputed domain names contain hyperlinks that resolve to third-party party websites, some of which directly compete with Complainant.  On the basis of the evidence provided, the Panel finds that the Respondent’s conduct constitutes bad faith registration and use pursuant to 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. 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)).

 

Further, the Complainant asserts that the Respondent is receiving click-through fees from the hyperlinks featured on the websites resolving from the disputed domain names, and thus the Respondent is using the disputed domain names to attract Internet users to the resolving websites for commercial gain by creating a likelihood of confusion between the Complainant and the disputed domain names.  On the basis of the evidence presented, the Panel agrees with the Complainant.  The Respondent’s actions constitute bad faith registration and use under Policy ¶ 4(b)(iv).  See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees.   Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).

 

As noted above, it is clear that the Respondent is engaging in typo-squatting.  This is further evidence of bad faith registration and use under Policy ¶ 4(a)(iii).  See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typo-squatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typo-squatting.’  This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain.  ‘Typo-squatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).

 

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 <teavelocity.com>, <trarvelocity.com>, <trasvelocity.com>, <travelocityy.com>, <travelpcity.com>, <travwlocity.com>, <ttavelocity.com>, and <yravelocity.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist
Dated: September 11, 2009

 

 

 

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