Travelocity.com LP v. Whois Protect c/o Punjabi
Claim Number: FA0912001298879
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <travelogcity.com>, <travelvocity.com>, <traverlocity.com>, and <travlelocity.com>, registered with Answerable.com (I) Pvt. Ltd.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically December 14, 2009; the National Arbitration Forum received a hard copy of the Complaint December 15, 2009.
On January 9, 2010, Answerable.com (I) Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <travelogcity.com>, <travelvocity.com>, <traverlocity.com>, and <travlelocity.com> domain names are registered with Answerable.com (I) Pvt. Ltd. and that Respondent is the current registrant of the names. Answerable.com (I) Pvt. Ltd. verified that Respondent is bound by the Answerable.com (I) Pvt. Ltd. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On January 28, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 17, 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 postmaster@travelogcity.com, postmaster@travelvocity.com, postmaster@traverlocity.com, and postmaster@travlelocity.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 26, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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:
1. The domain names that Respondent registered, <travelogcity.com>, <travelvocity.com>, <traverlocity.com>, and <travlelocity.com>, are confusingly similar to Complainant’s TRAVELOCITY mark.
2. Respondent has no rights to or legitimate interests in the <travelogcity.com>, <travelvocity.com>, <traverlocity.com>, and <travlelocity.com> domain names.
3. Respondent registered and used the <travelogcity.com>, <travelvocity.com>, <traverlocity.com>, and <travlelocity.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Travelocity.com L.P., is an online provider of travel-booking and information services. Complainant owns numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its TRAVELOCITY mark (e.g., Reg. No. 2,254,700 issued on June 22, 1999).
Respondent registered the <travelogcity.com>, <traverlocity.com>, and <travlelocity.com> domain names August 23, 2000 and the <travelvocity.com> domain name December 12, 2001. Respondent’s disputed domain names resolve to a website that displays third-party links for travel service and booking websites of competitors of Complainant.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 obtained multiple trademark registrations for its TRAVELOCITY mark with the USPTO (e.g., Reg. No. 2,254,700 issued on June 22, 1999). The Panel finds that Complainant established rights in the TRAVELOCITY mark for the purposes of Policy ¶ 4(a)(i) through its trademark registration with the USPTO. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also 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).”). The Panel further finds that the trademark registration does not need to be in the country in which Respondent resides for the purposes of Policy ¶ 4(a)(i). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the complainant has rights to the name when the mark is registered in a country even if the complainant has never traded in that country).
Complainant argues that the <travelogcity.com>, <travelvocity.com>, <traverlocity.com>,
and <travlelocity.com> domain names are confusingly similar
to its TRAVELOCITY mark. Complainant
notes that each disputed domain name contains a purposely misspelled version of
its TRAVELOCITY mark, whereby Respondent merely added letters to the mark in
the disputed domain names. Complainant
further argues that the addition of the generic top-level domain (“gTLD”)
“.com” does not distinguish the disputed domain names from its TRAVELOCITY
mark. The Panel finds that misspelling a
mark, and addition of a gTLD within the disputed domain names does not
distinguish the disputed domain names from Complainant’s mark pursuant to
Policy ¶ 4(a)(i).
See Jerry Damson,
Inc. v.
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Complainant maintains that Respondent has no rights to or legitimate interests in the disputed domain names. Complainant is required to make a prima facie case in support of these allegations. After the Complainant makes a prima facie case to support its allegation, the burden of proof shifts to the Respondent to show that it does have such rights or legitimate interests in the disputed domain names. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”). The Panel finds that Complainant made a prima facie case. Due to the Respondent’s failure to respond to these proceedings, the Panel may assume that Respondent does not have any rights or legitimate interests in the disputed domain names. However, this Panel still examines the record to determine whether evidence in the submissions suggests that Respondent has any rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c). See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond).
Complainant contends that Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services and that Respondent is not making a noncommercial or fair use of the disputed domain names. Complainant argues that Respondent is using each of the disputed domain names to resolve to a website that offers click-through links and advertisements for Complainant’s competitors in the online travel booking and service market, presumably for Respondent’s own financial gain. The Panel finds that Respondent’s use of the disputed names to divert Internet users to Complainant’s competitors, presumably for financial gain, does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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)).
Complainant further contends that Respondent is not commonly known by the disputed domain names and that Complainant has not given Respondent permission to use Complainant’s TRAVELOCITY mark. The WHOIS information for the disputed domain names does not indicate, and no evidence of record even suggests that Respondent is commonly known by the disputed domain names. The Panel finds that without affirmative evidence that Respondent is commonly known by the disputed domain names, Respondent has not shown rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name).
Complainant further asserts that Respondent is taking
advantage of Internet users that are attempting to reach Complainant’s website
by capitalizing on the misspelling of Complainant’s TRAVELOCITY mark. The Panel finds that Respondent’s engagement
in typosquatting is evidence that Respondent lacks rights and legitimate
interests in the disputed domain names under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Complainant asserts that Respondent’s use of the disputed domain names to divert Internet users seeking Complainant’s <travelocity.com> website actively disrupts Complainant’s online travel booking and service business, by creating a confusing similarity between Complainant’s TRAVELOCITY mark and the disputed domain names. See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com>domain name in bad faith pursuant to ICANN Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also 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).”).
Respondent’s <travelogcity.com>, <travelvocity.com>,
<traverlocity.com>, and <travlelocity.com>
domain names intentionally divert Internet users seeking Complainant’s services
to Respondent’s own website, which displays third-party links to Complainant’s
competitors. The Panel in this case
presumes that Respondent is collecting click-through fees for an Internet users
mistaken belief about whose website they are visiting, and that this use is
further evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See BPI Comm’cns, Inc.
v. Boogie TV LLC, FA 105755
(Nat. Arb. Forum Apr. 30, 2002) (“Complainants are in the music and
entertainment business. The links
associated with <billboard.tv> and <boogie.tv> appear to be in
competition for the same Internet users, which Complainants are trying to
attract with the <billboard.com> web site. There is clearly a likelihood of confusion
between <billboard.tv> and BILLBOARD as to the source, sponsorship, affiliation,
or endorsement of the web site or of a product or service on the web site.”); see also
The Panel has previously found that Respondent is engaging in typosquatting, which, standing alone, supports findings of bad faith registration and use under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.).
The Panel finds that Complainant satisfied the elements of ICANN 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 <travelogcity.com>, <travelvocity.com>, <traverlocity.com>, and <travlelocity.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: March 12, 2010
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