Expedia, Inc. v. Ya Wang
Claim Number: FA0908001279342
Complainant is Expedia,
Inc. (“Complainant”), represented by Sara
E. Yevics, of K&L Gates LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <vegasexpedia.com>, registered with Godaddy.com, Inc.
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 August 12, 2009; the National Arbitration Forum received a hard copy of the Complaint on August 14, 2009.
On August 13, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <vegasexpedia.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. 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 August 19, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 8, 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@vegasexpedia.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 9, 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <vegasexpedia.com> domain name is confusingly similar to Complainant’s EXPEDIA mark.
2. Respondent does not have any rights or legitimate interests in the <vegasexpedia.com> domain name.
3. Respondent registered and used the <vegasexpedia.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Expedia, Inc., is the owner of the EXPEDIA mark, registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,220,719 issued January 26, 1999). Complainant uses its EXPEDIA mark in connection with the offering of a variety of goods and services, including airline tickets, hotel accommodations, car rentals, and vacation packages.
Respondent registered the <vegasexpedia.com> domain name on June 26, 2008. The disputed domain name resolves to a commercial website that offers travel services that are in direct competition with Complainant’s business. Furthermore, the disputed domain name’s resolving website contains travel-related information and links to the third-party websites of Complainant’s competitors in the travel industry. On August 28, 2009, Respondent sent an e-mail to the National Arbitration Forum stating that it does not intend to harm Complainant. Respondent changed the title of the resolving website to “youtravelbeyond” and continues to operate its commercial website offering competing travel services at the disputed domain name.
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.
Complainant has presented evidence of its registration of
the EXPEDIA mark with the USPTO (Reg. No. 2,220,719 issued January 26, 1999).
Based on this evidence, the Panel finds that Complainant has established
sufficient rights in the EXPEDIA mark pursuant to Policy ¶ 4(a)(i). See Thermo Electron Corp. v. Xu, FA
713851 (Nat. Arb. Forum July 12, 2006) (finding that the complainants had
established rights in marks where the marks were registered with a trademark
authority); see also Reebok Int’l Ltd. v.
Complainant contends that Respondent’s <vegasexpedia.com>
domain name is confusingly similar to its EXPEDIA mark under Policy ¶
4(a)(i). The disputed domain name
incorporates Complainant’s EXPEDIA mark in its entirety with the mere addition
of the geographically descriptive term “vegas” and the affixation of the
generic top-level domain “.com.” Complainant
contends that the addition of the prefix “vegas” to Complainant’s EXPEDIA mark
may actually increase confusion because Complainant offers travel services in
numerous cities around the
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has asserted that Respondent lacks rights and legitimate interests in the <vegasexpedia.com> domain name. Complainant must successfully assert a sufficient prima facie case supporting its allegations before Respondent receives the burden of demonstrating its rights or legitimate interests in the disputed domain name. The Panel finds that Complainant has met its burden, and therefore Respondent must demonstrate its rights or legitimate interests under Policy ¶ 4(c). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). However, Respondent has failed to respond to the allegations against it. Thus, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name. See 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 Panel will, nevertheless, examine the record to determine whether it reveals any rights or legitimate interests for Respondent in regards to the <vegasexpedia.com> domain name under Policy ¶ 4(c).
The <vegasexpedia.com> domain name resolves to a commercial website containing the title “youtravelbeyond.” The disputed domain name’s resolving website offers travel services and hotel accommodations that are in direct competition with Complainant. Moreover, the disputed domain name also features click-through links that further resolve to the third-party websites of Complainant’s competitors. The Panel presumes that Respondent is profiting through the receipt of referral fees. Therefore, the Panel finds that Respondent has is not using the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii), respectively. See Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that the respondent’s use of domain names confusingly similar to the complainant’s WAL-MART mark to divert Internet users seeking the complainant’s goods and services to websites competing with the complainant did not constitute 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 also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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)).
The pertinent WHOIS information for the <vegasexpedia.com>
domain name lists the registrant as “Ya Wang.”
This information, together with the lack of evidence in the record to
suggest otherwise, establishes the Panel’s conclusion that Respondent is not
commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See
Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006)
(concluding that the respondent was not commonly known by the disputed domain
names where the WHOIS information, as well as all other information in the
record, gave no indication that the respondent was commonly known by the
disputed domain names, and the complainant had not authorized the respondent to
register a domain name containing its registered mark); see also Coppertown
Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding
that the respondent was not commonly known by the <coppertown.com> domain
name where there was no evidence in the record, including the WHOIS
information, suggesting that the respondent was commonly known by the disputed
domain name).
Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s confusingly similar <vegasexpedia.com> domain name, which was registered on June 26, 2008, resolves to a commercial website displaying 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 name 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 Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate websites that compete with the complainant’s business).
The Panel further finds that Respondent’s use of the aforementioned hyperlinks on the website resolving from the confusingly similar disputed domain name creates a likelihood of confusion as to Complainant’s affiliation with the disputed domain name. The Panel notes 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 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 Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <vegasexpedia.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: September 22, 2009
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