national arbitration forum

 

DECISION

 

TRAVELOCITY.COM LP. v. Pioneer Enterprises Limited c/o Pioneer Enterprises

Claim Number: FA0909001282629

 

PARTIES

Complainant is TRAVELOCITY.COM LP. (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Pioneer Enterprises Limited c/o Pioneer Enterprises (“Respondent”), Antigua and Barbuda.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <travelocisty.com>, <travelovcity.com>, <travelozity.com>, <travewlocity.com>, <travvelocity.com> and <trovelocity.com>, registered with Enom, Inc.

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.

 

Tyrus R. Atkinson, Jr., as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on September 2, 2009; the National Arbitration Forum received a hard copy of the Complaint on September 2, 2009.

 

On September 2, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <travelocisty.com>, <travelovcity.com>, <travelozity.com>, <travewlocity.com>, <travvelocity.com> and <trovelocity.com> domain names are registered with Enom, Inc. and that Respondent is the current registrant of the names.  Enom, Inc. has verified that Respondent is bound by the Enom, 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 September 4, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 24, 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@travelocisty.com, postmaster@travelovcity.com, postmaster@travelozity.com, postmaster@travewlocity.com,  postmaster@travvelocity.com and postmaster@trovelocity.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On October 1, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <travelocisty.com>, <travelovcity.com>, <travelozity.com>, <travewlocity.com>, <travvelocity.com> and <trovelocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY mark.

 

2.      Respondent does not have any rights or legitimate interests in the <travelocisty.com>, <travelovcity.com>, <travelozity.com>, <travewlocity.com>, <travvelocity.com> and <trovelocity.com> domain names.

 

3.      Respondent registered and used the <travelocisty.com>, <travelovcity.com>, <travelozity.com>, <travewlocity.com>, <travvelocity.com> and <trovelocity.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 products and services online through its various websites.  Since 1996, Complainant has operated under the TRAVELOCITY mark.  Complainant holds multiple registrations for the TRAVELOCITY mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,254,700 issued June 22, 1999).

 

Respondent, Pioneer Enterprises Limited c/o Pioneer Enterprises, registered the disputed domain names beginning on April 3, 2002.  Each disputed domain name resolves to a website that redirects Internet users to the third-party websites, some of which are for  Complainant’s competitors in the travel service 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

 

The Panel finds that Complainant’s registration of the TRAVELOCITY mark with the USPTO (e.g., Reg. No. 2,254,700 issued June 22, 1999) adequately demonstrates Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).  See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)).

 

Respondent’s <travelocisty.com>, <travelovcity.com>, <travelozity.com>, <travewlocity.com>, <travvelocity.com> and <trovelocity.com> domain names contain Complainant’s TRAVELOCITY mark and make the following changes: (1) the addition or substitution of a letter in the TRAVELOCITY mark; and (2) adding the generic top-level domain (“gTLD”) “.com.”  The Panel finds that the addition of a gTLD is not relevant in a Policy ¶ 4(a)(i) analysis.  Moreover, the misspelling of a mark through the addition or substitution of letters in a mark does not distinguish a disputed domain name from a mark.  Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).  See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”); see also 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 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 finds that Policy ¶ 4(a)(i) has been satisfied.

 

Rights or Legitimate Interests

 

Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain names.  The Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), shifting the burden of proof to Respondent.  Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).  However, the Panel chooses to examine the record to determine whether Respondent has any rights or legitimate interests pursuant to Policy ¶ 4(c).  See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name.  It also allows the Panel to accept all reasonable allegations set forth…as true.”).

 

The WHOIS information for the disputed domain names lists Respondent as “Pioneer Enterprises Limited c/o Pioneer Enterprises.”  Complainant argues that Respondent is not permitted or authorized to use Complainant’s mark and that Respondent is not commonly known by the disputed domain names.  Respondent has failed to submit a response to these proceedings and thus has not countered Complainant’s allegations.  Based upon the evidence in the record and WHOIS information, the Panel finds Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).  See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because the respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).

 

Respondent’s disputed domain names resolve to third-party websites, some which promote Complainant’s competitors through click-through links.  The Panel presumes Respondent receives compensation in the form of click-through fees for its use of the disputed domain names.  The Panel finds Respondent’s use of the disputed domain names is 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).  See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors 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)).

 

Complainant has asserted that Respondent engaged in typosquatting, which occurs when a domain name reflecting the misspelling of a trademark is registered with the intent of diverting Internet users.  Here, Respondent simply misspelled Complainant’s mark when choosing to register the disputed domain names and is using the disputed domain names to divert Internet users to third-party websites, some of which are competing with Complainant.  Thus, the Panel finds that Respondent’s has engaged in typosquatting, which is evidence Respondent lacks rights and legitimate 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 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 “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).

 

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

 

Registration and Use in Bad Faith

 

In the instant proceedings Respondent has registered six domain names incorporating variations of Complainant’s TRAVELOCITY mark.  The Panel finds Respondent’s conduct demonstrates a pattern of bad faith registration and use pursuant to Policy ¶ 4(b)(ii).  See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also EPA European Pressphoto Agency B.V. v. Wilson, D2004-1012 (WIPO Feb. 9, 2005) (finding that the respondent’s registration of the <epa-photo.com>, <epaphoto.com> and <epaphotos.com> domain names was sufficient to constitute a pattern pursuant to Policy ¶ 4(b)(ii)).

 

The disputed domain names each resolve to third-party websites, some of which display links to Complainant’s competitors, disrupting Complainant’s business by misleading Internet users searching for Complainant’s travel services.  Thus, the Panel finds Respondent has engaged in bad faith registration and use of the disputed domain names pursuant to Policy ¶ 4(b)(iii).  See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent registered and used the domain name in bad faith, pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of a competitor of Complainant . . .”); 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).

 

The Panel finds that Respondent’s use of the confusingly similar disputed domain names is an attempt by Respondent to profit through the receipt of click-through fees by attempting to mislead Internet users as to Complainant’s affiliation with the website.  Therefore, the Panel finds Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv).  See GMAC LLC v. WhoisGuard Protected, FA 942715 (Nat. Arb. Forum May 9, 2007) (“Under Paragraph 4(b) of the Policy, evidence that a domain name registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website by creating a likelihood of confusion with the complainant’s mark serves as evidence of bad faith.”); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).

 

Furthermore, as previously discussed the Panel finds Respondent has engaged in the practice of typosquatting which constitutes bad faith registration and use 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 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 that Policy ¶ 4(a)(iii) has been satisfied.

 

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 <travelocisty.com>, <travelovcity.com>, <travelozity.com>, <travewlocity.com>, <travvelocity.com> and <trovelocity.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Tyrus R. Atkinson, Jr., Panelist

Dated:  October 13, 2009

 

 

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