national arbitration forum

 

DECISION

 

TRAVELOCITY.COM LP. v. RF c/o Ed Sanders

Claim Number: FA0907001275155

 

PARTIES

Complainant is TRAVELOCITY.COM LP. (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is RF c/o Ed Sanders (“Respondent”), Sierra Leone.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain name at issue is <travelo0city.com>, <travelocityhotel.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com>, registered with Rebel.com.

 

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.

 

John J. Upchurch 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, Rebel.com confirmed by e-mail to the National Arbitration Forum that the <travelo0city.com>, <travelocityhotel.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names are registered with Rebel.com and that Respondent is the current registrant of the names.  Rebel.com has verified that Respondent is bound by the Rebel.com 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 27, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 17, 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@travelo0city.com, postmaster@travelocityhotel.com, postmaster@traveloctie.com, postmaster@travelozcity.com, and postmaster@travetlocity.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 21, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <travelo0city.com>, <travelocityhotel.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark.

 

2.      Respondent does not have any rights or legitimate interests in the <travelo0city.com>, <travelocityhotel.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names.

 

3.      Respondent registered and used the <travelo0city.com>, <travelocityhotel.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names in bad faith.

 

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

 

FINDINGS

Complainant, TRAVELOCITY.COM LP, provides consumer-direct travel services.  Complainant has operated under the TRAVELOCITY.COM mark since 1997.  Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for its TRAVELOCITY.COM mark (Reg. No. 2,254,700 issued June 22, 1999).

Respondent registered the <travelo0city.com>, <travelocityhotel.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names no earlier than March 6, 2007.  The disputed domain names resolve to websites featuring links to and advertisements for third party websites, some of which relate to Complainant’s competitors in the travel services industry.

 

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

 

Previous panels have found that trademark registration with the USPTO is sufficient to establish rights in a trademark pursuant to Policy ¶ 4(a)(i).  See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).  Therefore, the Panel finds Complainant has established rights under Policy ¶ 4(a)(i) in the TRAVELOCITY.COM mark through its registrations of the mark with the USPTO (Reg. No. 2,254,700 issued June 22, 1999).

 

Complainant alleges Respondent’s <travelo0city.com>, <travelocityhotel.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark.  The <travelocityhotel.com> domain name contains Complainant’s mark with the addition of the descriptive term “hotel,” which relates to Complainant’s travel services business.  The Panel finds the addition of a descriptive term fails to adequately distinguish the disputed domain name from Complainant’s mark.  See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”).  The <travelo0city.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names simply misspell Complainant’s mark.  The Panel finds a misspelling of Complainant’s mark fails to distinguish the disputed domain names from Complainant’s mark pursuant to Policy ¶ 4(a)(i).  See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (finding that the respondent’s disputed domain names were confusingly similar to the complainant’s mark because the disputed domain names were common misspellings of the mark involving keys that were adjacent to the current keys comprising the complainant’s mark); see also Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark).  Therefore, the Panel finds the disputed domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark under Policy ¶ 4(a)(i).

 

The Panel finds Complainant’s has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Complainant has alleged Respondent does not have rights or legitimate interests in the <travelo0city.com>, <travelocityhotel.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names.  Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  The Panel finds Complainant has made a sufficient prima facie case.  Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain names.  However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c).  See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”).

 

Respondent is using the disputed domain names to redirect Internet users interested in Complainant’s consumer-direct travel services to websites containing links to and advertisements for competing travel services.  The Panel infers that Respondent profits from receiving click-through fees from the links and advertisements featured on the resolving websites.  The Panel finds Respondent’s use of disputed domain names that are confusingly similar to Complainant’s TRAVELOCITY.COM mark to redirect Internet users for this purpose is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii).  See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use).

 

Complainant contends Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii).  Complainant provides the WHOIS information which identifies Respondent as “RF c/o Ed Sanders.”  Complainant asserts Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii).  Respondent has offered no evidence, and there is no evidence in the record, suggesting that Respondent is commonly known by the disputed domain names.  See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).  Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii).

 

In addition, Respondent’s use of the <travelo0city.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names constitutes typosquatting.  The disputed domain names all contain common typographical errors and misspellings of Complainant’s TRAVELOCITY.COM mark.  The Panel finds that Respondent’s use of the <travelo0city.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names to redirect Internet users seeking Complainant’s website and travel services fails to establish rights or interests pursuant to 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 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).”).

 

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

 

Registration and Use in Bad Faith

 

Respondent uses the disputed domain names, which are confusingly similar to Complainant’s TRAVELOCITY.COM mark, to resolve to websites featuring advertisements and links relating to Complainant’s competitors in the travel services industry.  The Panel finds that this use of the disputed domain names constitutes a disruption of Complainant’s travel services business, which is evidence of 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 David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).

 

Complainant alleges Respondent receives click-through fees from displaying the advertisements and links to Complainant’s competitors.  Respondent is using the confusingly similar disputed domain names to profit from Internet users’ confusion as to Complainant’s affiliation with the resolving website.  The Panel finds Respondent’s use of the dispute domain name constitutes bad faith registration and use under Policy ¶ 4(b)(iv).  See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Bama Rags, Inc. v. Zuccarini, FA 94381 (Nat. Arb. Forum May 8, 2000) (finding bad faith where the respondent used a misspelling of the complainant’s famous mark to attract Internet users to a series of advertisements).

 

Furthermore, Respondent’s use of the <travelo0city.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names constitute typosquatting by misspelling Complainant’s TRAVELOCITY.COM mark.  Therefore, the Panel finds Respondent’s practice of typosquatting constitutes bad faith registration and use of the <travelo0city.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names pursuant to 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 K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).

 

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

 

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 <travelo0city.com>, <travelocityhotel.com>, <traveloctie.com>, <travelozcity.com>, and <travetlocity.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

John J. Upchurch, Panelist

Dated:  September 4, 2009

 

 

 

 

 

 

National Arbitration Forum


 

 

 

 

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