Travelocity.com LP v. Jing Zi Xin c/o Jing Zi Xin
Claim Number: FA0912001298885
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR
The domain name at issue is <travelocily.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On December 15, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <travelocily.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the name(s). Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com 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 22, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 11, 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@travelocily.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <travelocily.com> domain name is confusingly similar to Complainant’s TRAVELOCITY mark.
2. Respondent does not have any rights or legitimate interests in the <travelocily.com> domain name.
3. Respondent registered and used the <travelocily.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Travelocity.com
LP, holds a trademark registration for its TRAVELOCITY mark with the United
States Patent and Trademark Office (“USPTO”) (Reg. No. 2,254,700 issued
Respondent, Jing Zi Xin c/o
Jing Zi Xin, registered the disputed domain name on October 11, 2005. The disputed domain name resolves to a
website featuring links to third-party websites, some of which compete with
Complainant’s business. Respondent
presumably receives pay-per-click fees from these linked websites.
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 asserts rights in its TRAVELOCITY mark through
its holding of a registration for the TRAVELOCITY mark with the USPTO (Reg. No.
2,254,700 issued June 22, 1999). The Panel finds that Complainant has
established rights in the TRAVELOCITY mark under Policy ¶ 4(a)(i) through its
registration with the USPTO. 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 Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding
that the complainant’s federal trademark registrations for the CHEAPTICKETS and
CHEAPTICKETS.COM marks were adequate to establish its rights in the mark
pursuant to Policy ¶ 4(a)(i)).
Complainant argues that
Respondent’s <travelocily.com> domain name is confusingly similar to Complainant’s
TRAVELOCITY mark pursuant to Policy ¶ 4(a)(i).
Respondent’s disputed domain name simply misspells Complainant’s mark by
replacing the letter “t” with the letter “l” and adds the generic top-level
domain (“gTLD”) “.com.” The Panel finds
that the misspelling of Complainant’s TRAVELOCITY by replacing the “t” with a
“l” creates confusing similarity between the disputed domain name and
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 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”). The Panel also finds that the addition of a
gTLD to a registered mark is irrelevant in distinguishing a disputed domain
name and a mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no 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 it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a response to these proceedings. 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 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.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
The WHOIS information for the disputed domain name lists the registrant as “Jing Zi Xin c/o Jing Zi Xin.” Complainant has not given permission to use Complainant’s mark and Respondent is not sponsored by or legitimately affiliated with Complainant. Without evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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); see also 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).
Complainant argues that Respondent is using a typographical
error in the confusingly similar disputed domain name to redirect Internet
users to Respondent’s website and attempting to profit from it through the
collection of pay-per-click fees. The
Panel agrees and finds that Respondent has no rights or legitimate interests
under 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
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s registration and use of
the disputed domain name to link Internet users to websites featuring third party-links
which are in competition with Complainant constitutes a disruption of
Complainant’s business and constitutes bad faith registration and use pursuant
to Policy ¶ 4(b)(iii). See Tesco Pers. Fin.
Ltd. v. Domain Mgmt. Servs., FA
877982
(Nat. Arb. Forum Feb.
13, 2007) (concluding that the use of a confusingly similar domain name to
attract Internet users to a directory website containing commercial links to
the websites of a complainant’s competitors represents bad faith registration
and use under Policy ¶ 4(b)(iii)); see
also
The Panel finds that Respondent’s use of the disputed domain
name to intentionally attract Internet users attempting to access Complainant’s
goods and services and redirect them to the disputed domain name and profit
from the receipt of pay-per-click fees is evidence of bad faith pursuant to
Policy ¶ 4(b)(iv).
See
As established previously, Respondent has engaged in the practice of typosquatting by using a common mistyping of Complainant’s TRAVELOCITY mark to misdirect Internet users. The Panel finds typosquatting is itself evidence 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 Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <travelocily.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 3, 2010
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