Travelocity.com LP v. Thomas Lefleur c/o n/a
Claim Number: FA0911001296087
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue is <traveloity.com> and <travelociy.com>, registered with Enom, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 24, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 25, 2009.
On November 24, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <traveloity.com> and <travelociy.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 December 1, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 21, 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 email@example.com and firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 28, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant is an online travel booking company that promotes its services under the trademark TRAVELOCITY.
Complainant has used the TRAVELOCITY trademark continuously in commerce since at least as early as 1996, and now has visits to its corresponding website from Internet users numbering over 8 million monthly.
Complainant registered the TRAVELOCITY mark with the United States Patent and Trademark Office (“USPTO”) on June 22, 1999 (Reg. No. 2,254,700).
Respondent is not commonly known by the disputed domain names, nor has it ever been the owner or licensee of the TRAVELOCITY mark.
Respondent registered the disputed domain names on July 12, 2001.
The disputed domain names resolve to a website that features links to third-party websites that compete with Complainant’s business.
Respondent gains commercially from the receipt of click-through fees through its diversion of Internet users by means of the disputed domain names.
Respondent’s <traveloity.com> and <travelociy.com> domain names are confusingly similar to Complainant’s TRAVELOCITY mark.
Respondent does not have any rights to or legitimate interests in the <traveloity.com> and <travelociy.com> domain names.
Respondent registered and uses the <traveloity.com> and <travelociy.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of either of the same domain names; and
(3) Both of the same domain names were registered and are being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the TRAVELOCITY trademark
sufficient for purposes of Policy ¶ 4(a)(i) through
its trademark registration with the USPTO).
See Miller Brewing
Complainant contends that Respondent’s <traveloity.com> and <travelociy.com> domain names are confusingly similar to its TRAVELOCITY mark in that each disputed domain name differs from Complainant’s mark in only two ways: (1) a single letter (“c” and “t,” respectively) have been deleted from the mark; and (2) the generic top-level domain (“gTLD”) “.com” has been added. The deletion of a single letter from a mark used in forming a domain name does not sufficiently distinguish the domain from the incorporated mark for purposes of Policy ¶ 4(a)(i). Similarly, the addition of a gTLD does not reduce the likelihood of confusion between the resulting domain name and the mark, because every domain name must contain a top-level domain. Therefore, we conclude that these changes do not eliminate the resulting likelihood of confusion, so that Respondent’s domain names are confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name is confusingly similar to a complainant’s PFIZER mark, where a respondent simply omitted the letter “i” from the mark in forming the contested domain); see also Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Nat. Arb. Forum Nov. 15, 2006) (holding that a respondent’s <hacrs.com> domain name is confusingly similar to a complainant’s HACRES mark because it merely omitted the letter “e” from the mark and added the generic top-level domain “.com”); further see Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003):
The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.
The Panel therefore finds that the requirements of Policy ¶ 4(a)(i) have been satisfied by Complainant’s submissions.
Complainant contends that Respondent lacks rights to and legitimate interests in the disputed domain names. Under Policy ¶ 4(a)(ii), once a complainant makes out a prima facie case against a respondent, that respondent has the burden of showing evidence that it does have rights to or legitimate interests in a disputed domain name. See Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with a respondent to demonstrate that it has rights to or legitimate interests in a contested domain name); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once a complainant asserts that a respondent has no rights to or legitimate interests with respect to a domain, the burden shifts to that respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Complainant has made out a prima facie case under Policy ¶ 4(a)(ii),
while Respondent, for its part, has not responded to the Complaint. We are therefore free to conclude that
Respondent has no rights or interests with respect to the contested domains
which are cognizable under the Policy. See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
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).
We will nonetheless examine the record before us, in consideration of the factors set out in Policy ¶ 4(c), to determine if there is in it any basis for concluding that Respondent has rights or interests in the contested domain name which are cognizable under the Policy.
We begin by observing that Complainant contends, and Respondent does not deny, that Respondent is not commonly known by the disputed domain names nor has it ever been the owner or licensee of the TRAVELOCITY mark. Moreover, the pertinent WHOIS records for the disputed domain names list Respondent only as “Thomas Lefleur c/o n/a.” We are therefore constrained to conclude that Respondent is not commonly known by either of the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that a respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the relevant WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant of the domains and there was no other evidence in the record to suggest that that respondent was commonly known by the domain names there in dispute); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003): “Given the WHOIS contact information for the disputed domain, one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”.
We also note that there is no dispute as to Complainant’s allegation to the effect that each of the disputed domain names resolves to a website that features links to websites offering the products and services of Complainant’s business competitors. This use of the disputed domain names to promote Complainant’s competitors 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 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 contested 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)); see also Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (finding that a respondent’s use of a contested domain name to operate a pay-per-click search engine in competition with the business of a complainant, was not a bona fide offering of goods or services under the Policy).
The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.
We have already concluded that Respondent is using the disputed domain names to divert Internet customers seeking Complainant’s website to the competitive websites that resolve from the disputed domain names. The confusion likely caused among Internet users by the similarity between the TRAVELOCITY mark and the disputed domain names disrupts Complainant’s business and is evidence of registration and use of the contested domains in bad faith pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003):
Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).
See also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a contested domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s business competitors represents bad faith registration and use of the domain under Policy ¶ 4(b)(iii)).
Complainant also contends, and Respondent does not deny,
that Respondent gains commercially, by means of the receipt of click-through
fees, from its diversion of Internet users via the contested domain names. Respondent is thus intentionally using the disputed domain
names for commercial gain through a likelihood of confusion with Complainant’s
mark. Accordingly, pursuant to Policy ¶
4(b)(iv), we conclude that this use for commercial
gain also constitutes evidence of registration and use of the disputed domain
names in bad faith. See
T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the
registration and use of a domain name confusingly similar to a complainant’s
mark to direct Internet traffic to a commercial “links page” in order to profit
from click-through fees or other revenue sources constitutes bad faith under
Policy ¶ 4(b)(iv)); see also
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).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <traveloity.com> and <travelociy.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: January 11, 2010
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