Travelocity.com LP v.
Claim Number: FA0912001299319
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <thravelocity.com>, <travelccity.com>, and <tvavelocity.com>, registered with Compana, LLC.
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
On December 21, 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@thravelocity.com, postmaster@travelccity.com, and postmaster@tvavelocity.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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <thravelocity.com>, <travelccity.com>, and <tvavelocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY mark.
2. Respondent does not have any rights or legitimate interests in the <thravelocity.com>, <travelccity.com>, and <tvavelocity.com> domain names.
3. Respondent registered and used the <thravelocity.com>, <travelccity.com>, and <tvavelocity.com> domain names 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 registered the <thravelocity.com>, <travelccity.com>,
and <tvavelocity.com> domain names on or after
Complainant
offers evidence that Respondent has a history of registering domain names
infringing upon the trademark rights of others, and has been ordered by
previous UDRP panels to transfer the disputed domain names to the respective
complainants. See Skyhawke Tech., LLC v.
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 registered the <thravelocity.com>, <travelccity.com>,
and <tvavelocity.com> domain names on or after
Complainant argues that Respondent’s <thravelocity.com>, <travelccity.com>,
and <tvavelocity.com> domain names are confusingly similar to
Complainant’s TRAVELOCITY mark pursuant to Policy ¶ 4(a)(i). Each of Respondent’s disputed domain names
contain a misspelled version of Complainant’s mark and add 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 fails to realize a distinguishing characteristic and 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 is irrelevant in
distinguishing a disputed domain name from a registered mark. See
Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the
mere addition of the generic top-level domain “.com” is insufficient to
differentiate a disputed domain name from a mark); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat.
Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has sufficiently met its burden of producing a prima facie case that Respondent lacks
rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). Therefore, it
is Respondent’s responsibility to repudiate Complainant’s assertion and provide
evidence that Respondent does have rights or legitimate interests in the
disputed domain names under Policy ¶ 4(c).
See Towmaster, Inc. v. Hale, FA
973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima
facie case that Respondent lacks rights and legitimate interests in the
disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to
Respondent to show it does have rights or legitimate interests.”); see also F. Hoffmann-La Roche AG v.
Di Salvatore, D2006-1417 (WIPO Feb. 1, 2007)
(“Proper analysis of paragraph 4(a)(ii) of the Policy shows that the
burden of proof shifts from the Complainant to the Respondent once the
Complainant has made out a prima facie case that the Respondent has no rights
or interests in the domain names.”). However,
Respondent has failed to respond to the Complaint. Consequently, the Panel may presume that
Respondent has no rights or legitimate interests in the disputed domain names. Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum
Respondent has
offered no evidence, and there is no evidence in the record, suggesting that
Respondent is commonly known by the disputed domain names.
Complainant asserts that Respondent is not authorized to use the TRAVELOCITY
mark. The WHOIS information identifies registrant
as “Texas International Property Associates – NA NA.” Therefore, the Panel finds that Respondent
has not established rights or legitimate interests in the disputed
domain names 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 St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21,
2007) (concluding a respondent has no rights or legitimate interests in a
disputed domain name where there was no evidence in the record indicating that
the respondent was commonly known by the disputed domain name).
Respondent’s disputed
domain names resolve to websites featuring advertisements and links relating to
Complainant’s competitors in the travel services industry. The Panel may
infer that Respondent profits through the generation of click-through fees from
the links to Complainant’s competitors. Therefore, the Panel finds that
Respondent’s use of the disputed domain names is not in connection with a bona
fide offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use of the disputed domain name under
Policy ¶ 4(c)(iii). See 24 Hour Fitness USA, Inc. v.
24HourNames.com-Quality Domains For
In addition, Respondent’s disputed domain names qualify as typosquatting,
given the misspelling of the TRAVELOCITY mark.
As such, the Panel finds Respondent’s attempt to capitalize on the
typographical errors of Internet users constitutes evidence that Respondent
lacks rights and legitimate interests in the disputed domain names under 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.
Complainant contends that Respondent has been the respondent
in multiple other UDRP cases wherein the disputed domain names were transferred
to the respective complainants in those cases. See Skyhawke
Tech., LLC v.
Respondent’s disputed domain names resolve to websites that promote
Complainant’s competitors in the travel services industry through click-through
links. Such an activity clearly disrupts
Complainant’s business, as Internet users seeking Complainant’s products will
be redirected to Complainant’s competitors.
This qualifies as bad faith registration and use under Policy ¶ 4(b)(iii). See David Hall Rare Coins v.
The Panel infers that Respondent receives click-through fees from the use of the aforementioned hyperlinks. Respondent is attempting to profit by creating a likelihood of confusion as to Complainant’s affiliation with the disputed domain names and the resolving websites. Therefore, the Panel finds that Respondent’s use of the disputed domain names constitute bad faith registration and use under Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“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).”).
Lastly, Respondent’s use of the disputed domain names constitute typosquatting by misspelling Complainant’s TRAVELOCITY mark. Internet users may accidentally misspell Complainant’s mark when attempting to reach Complainant, and may instead reach Respondent’s resolving websites and become confused. Respondent attempts to profit from the Internet users’ mistake and confusion. Therefore, the Panel finds Respondent’s practice of typosquatting constitutes bad faith registration and use of the disputed domain names pursuant to Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location’. . . through Respondent’s persistent practice of ‘typosquatting’”); see also K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).
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 <thravelocity.com>, <travelccity.com>, and <tvavelocity.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: February 3, 2010
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