Travelocity.com LP v. VELICITY.COM c/o Contact, Admin
Claim Number: FA0912001298876
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <travelicity.com>, registered with Dotster.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On December 17, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 6, 2010 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 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.
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 <travelicity.com> domain name is confusingly similar to Complainant’s TRAVELOCITY mark.
2. Respondent does not have any rights or legitimate interests in the <travelicity.com> domain name.
3. Respondent registered and used the <travelicity.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Travelocity.com LP, is a world-wide leader in travel services. Complainant owns a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the TRAVELOCITY mark (Reg. No. 2,254,700 issued June 22, 1999).
Respondent’s disputed domain name was registered on
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.
Respondent’s domain name travelcity.com
was registered on
Complainant argues that Respondent’s <travelicity.com> domain name is confusingly similar to Complainant’s TRAVELOCITY mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name contains a misspelled version of Complainant’s mark and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that a disputed domain name that contains a misspelled version of a complainant’s mark, in this case the insertion of an “i” instead of an “o,” fails to bring about a distinguishing characteristic and instead creates a confusing similarity between the disputed domain name and the complainant’s mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks). In addition, the Panel finds that the addition of a gTLD fails to distinguish a disputed domain name from a registered mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). Therefore, the Panel finds that Respondent’s <travelicity.com> domain name is confusingly similar to Complainant’s TRAVELOCITY mark pursuant to Policy ¶ 4(a)(i)
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights
or legitimate interests in the disputed
domain name. 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).
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.”). 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 name. See Talk City, Inc. v. Robertson,
The Panel finds that although Respondent appears to be commonly known by the disputed domain name from the WHOIS information, without affirmative evidence of Respondent being commonly known by the disputed domain name, Respondent lacks all rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”); see also City News & Video v. Citynewsandvideo, FA 244789 (Nat. Arb. Forum May 5, 2004) (“Although Respondent’s WHOIS information lists its name as ‘citynewsandvideo,’ there is no evidence before the Panel to indicate that Respondent is, in fact, commonly known by the disputed domain name <citynewsandvideo.com> pursuant to Policy ¶ 4(c)(ii).”).
Respondent is using the disputed domain name, which it registered on
Additionally, typosquatting occurs when a respondent
purposefully includes typographical errors in the mark portion of a disputed
domain name to divert Internet users who commit those typographical
errors. The disputed
domain name takes advantage of Internet users who mistype Complainant’s TRAVELOCITY
mark. Complainant contends that Respondent has engaged in typosquatting
by misspelling Complainant’s mark in the disputed domain name. The Panel agrees
and concludes that Respondent’s engagement in typosquatting is further evidence
that Respondent does not have rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(a)(ii). See LTD Commodities LLC v. Party
Night, Inc., FA 165155 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent intended to disrupt
Complainant’s business and take advantage of Complainant’s goodwill surrounding
its mark by displaying third-party links to Complainant’s competitors in the
travel services industry. The Panel
therefore finds that Respondent engaged in bad faith registration and use
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 . .
Additionally, Respondent has created a substantial likelihood of confusion as to the source and affiliation of the disputed domain name and the corresponding website. Respondent benefits from such a likelihood of confusion, as it receives referral fees for the competitive upscale gifts advertisements that are displayed to the diverted Internet users. The Panel finds this to be adequate evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”); 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.’”).
Lastly, the Panel finds
that Respondent’s engagement in typosquatting is further evidence that
Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶
4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Accordingly, it is Ordered that the <travelicity.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: February 2, 2010
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