Travelocity.com LP v. travelcoity.com c/o Domain Manager
Claim Number: FA0912001299219
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <travelcoity.com>, registered with Tucows 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 15, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 16, 2009.
On December 16, 2009, Tucows Inc. confirmed by e-mail to the National Arbitration Forum that the <travelcoity.com> domain name is registered with Tucows Inc. and that Respondent is the current registrant of the name. Tucows Inc. has verified that Respondent is bound by the Tucows 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 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 postmaster@travelcoity.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 14, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <travelcoity.com> domain name is confusingly similar to Complainant’s TRAVELOCITY mark.
2. Respondent does not have any rights or legitimate interests in the <travelcoity.com> domain name.
3. Respondent registered and used the <travelcoity.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, travelcoity.com
c/o Domain Manager, registered the disputed domain name on March 11, 2000. The disputed domain name resolves to a
website featuring generic links to third-party websites, some of which directly
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 Renaissance Hotel Holdings, Inc. v.
Renaissance
Complainant argues that
Respondent’s <travelcoity.com> domain name is confusingly similar to Complainant’s
TRAVELOCITY mark pursuant to Policy ¶ 4(a)(i).
Respondent’s disputed domain name merely transposes two letters in Complainant’s
mark and adds the generic top-level (“gTLD”) “.com.” The Panel finds that the transposition of
letters in Complainant’s TRAVELOCITY mark creates terms that are visually
similar to Complainant’s TRAVELOCITY mark resulting in confusing similarity for
the purposes of Policy ¶ 4(a)(i). See Google Inc.
v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding
<googel.com> to be confusingly similar to the complainant’s GOOGLE mark
and noting that “[t]he transposition of two letters does not create a distinct
mark capable of overcoming a claim of confusing similarity, as the result
reflects a very probable typographical error”); see also Wyndham IP Corp. v.
LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding
the <wynhdam.com> and <wyandham.com> domain names to be confusingly
similar to the complainant’s WYNDHAM mark because the domain names merely
transposed letters in the mark). The
Panel also finds that the addition of a gTLD to registered mark is irrelevant
in distinguishing a disputed domain name and a 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
Jerry Damson, Inc. v.
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).
Complainant asserts that Respondent is neither commonly known by the disputed domain name, nor has Complainant given Respondent permission to use Complainant’s mark. Respondent is not sponsored by or legitimately affiliated with Complainant’s mark.
The WHOIS information for the disputed domain name lists the
registrant as “travelcoity.com c/o Domain
Manager.” Although Respondent appears to
be commonly known by the disputed domain name from the WHOIS information, the
Panel finds that without affirmative evidence of Respondent being commonly
known by the disputed domain name, Respondent lacks 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’s disputed domain name was registered on March 11, 2000. The disputed domain name resolves to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent presumably receives pay-per-click fees from these linked websites. The Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or making a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii). See Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not 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), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites); 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 argues that Respondent is engaged in “typosquatting” by using a typographical error in the confusingly similar disputed domain name to redirect Internet users to Complainant’s website and attempting to profit from it through the collection of pay-per-click fees. The Panel 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 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.
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 <travelcoity.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 28, 2010
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