Travelocity.com LP v. Pioneer Enterprises Limited c/o Pioneer Enterprises Limited
Claim Number: FA0912001299745
Complainant is Travelocity.com
LP (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <travelocitiy.com>, registered with Fabulous.com Pty Ltd.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 18, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 21, 2009.
On December 21, 2009, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <travelocitiy.com> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. 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 23, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 12, 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@travelocitiy.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 21, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant markets and distributes travel-related products and services.
Complainant began operation in 1996 and has received awards for the travel-related products and services it provides.
Complainant offers these products and services at its website resolving from its <travelocity.com> domain name.
Complainant holds multiple trademark registrations with the United States Patent and Trademark Office ("USPTO") for its TRAVELOCITY mark (including Reg. No. 2,254,700, issued June 22, 1999).
Respondent is not affiliated with Complainant, and Respondent is not licensed by Complainant to use its TRAVELOCITY mark.
Respondent is not an authorized vendor, supplier, or distributor of Complainant’s travel related goods and services.
Respondent registered the <travelocitiy.com> domain name on August 23, 2000.
The disputed domain name resolves to a website featuring hyperlinks to third-party websites, some of which compete with Complainant’s business by offering travel-related products and services.
Respondent’s use of the <travelocitiy.com> domain name is for the purpose of attracting Internet users to Respondent’s website for its commercial gain.
Respondent’s <travelocitiy.com> domain name is confusingly similar to Complainant’s TRAVELOCITY trademark.
Respondent does not have any rights to or legitimate interests in the <travelocitiy.com> domain name.
Respondent registered and uses the <travelocitiy.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has registered its TRAVELOCITY mark with the
USPTO. While Respondent resides in
Complainant alleges that Respondent’s <travelocitiy.com> domain name is confusingly similar to Complainant’s TRAVELOCITY mark. The disputed domain name contains a common misspelling of Complainant’s mark by merely adding the letter “i.” Respondent has also added the generic top-level domain (“gTLD”) “.com” to form the domain name. Respondent use of a common misspelling of Complainant’s mark, coupled with a gTLD, fails to distinguish the disputed domain name from Complainant’s mark sufficiently to avoid a finding of confusing similarity. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004):
The mere addition of a single letter to the
complainant’s mark does not remove the respondent’s domain names from the realm
of confusing similarity in relation to the complainant’s mark pursuant to
Policy ¶ 4(a)(i).
See also Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i).); further see Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007):
The
mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to
adequately distinguish the Domain Name from the mark.
Therefore, the Panel concludes that Respondent’s <travelocitiy.com> domain name is confusingly similar to Complainant’s TRAVELOCITY mark pursuant to Policy ¶ 4(a)(i).
Complainant alleges that Respondent does not have any rights to or legitimate interests in the <travelocitiy.com> domain name. Once Complainant makes out a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does indeed have rights to or legitimate interests in the contested domain name. See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by a complainant, the burden shifts to a respondent to demonstrate its rights or legitimate interests in a disputed domain name.
Complainant has made out a sufficient prima facie case. In light of that showing, and, owing to Respondent’s failure to respond to the Complaint, we may presume that Respondent does not have rights to or legitimate interests in the disputed domain name. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000):
Failure
of a respondent to come forward to [to contest complainant’s allegations] is
tantamount to admitting the truth of complainant’s assertions in this regard.
However, we will examine the record before us, by reference to the tests set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name sufficient to satisfy the requirements of the Policy.
We begin by noting that the pertinent WHOIS information identifies the domain name registrant only as “Pioneer Enterprises Limited c/o Pioneer Enterprises Limited,” which is not the same as the disputed domain name. Complainant asserts, and Respondent does not deny, that Respondent is not affiliated with Complainant and that Respondent is not licensed by Complainant to use its TRAVELOCITY mark. Complainant further alleges, without contradiction from Respondent, that Respondent is not an authorized vendor, supplier, or distributor of Complainant’s travel related goods and services. On these facts, we are constrained to conclude that Respondent has failed to establish rights to or legitimate interests in the <travelocitiy.com> domain name pursuant to Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that a respondent was not commonly known by the <lilpunk.com> domain name where there was no evidence in the record showing that that respondent was commonly known by the contested domain name, and where the relevant WHOIS information, as well as a complainant’s assertion that it did not authorize or license that respondent’s use of its mark in a domain name, together concluded the issue); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding that a respondent had no rights to or legitimate interests in a disputed domain name where there was no evidence in the record indicating that that respondent was commonly known by the domain name).
We also observe that there is no dispute as to Complainant’s allegation to the effect that Respondent’s <travelocitiy.com> domain name resolves to a directory website containing hyperlinks to Complainant’s competitors in the travel related products and services business. In the circumstances here presented, we may comfortably presume that Respondent profits by means of click-through fees from the aforementioned hyperlinks. Therefore, we must conclude that Respondent’s use of the contested domain name is not 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 Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a contested domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain, regardless of whether the links resolve to competing or unrelated websites or whether the respondent profits commercially from the click-through fees); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting a respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name where that respondent was using the domain name to operate a website containing links to various commercial websites competing with the business of a complainant, which the panel found not to be a use of the domain 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)).
In addition, we are convinced that Respondent’s use of the <travelocitiy.com>
domain name constitutes typo-squatting, in that the contested domain name
is plainly a consciously made common misspelling of Complainant’s TRAVELOCITY trademark,
which Respondent uses to redirect Internet users seeking Complainant’s website
to its own. This is not a use which establishes
rights or legitimate interests in the domain. See Microsoft
Corp. v. Domain Registration
‘typosquatting’ is evidence that Respondent lacks rights [to]or
legitimate interests in the disputed domain names.
The Panel thus finds Policy ¶ 4(a)(ii) has been satisfied.
We have already concluded, as Complainant claims, that the website resolving from Respondent’s <travelocitiy.com> domain name contains hyperlinks to Complainant’s business competitors in the travel related business and services industry. Complainant’s competitors thus may receive business that, but for Respondent’s contested domain name, Complainant would have received from Internet users interested in Complainant’s travel related products and services. Respondent’s use of the contested domain name, as alleged, disrupts Complainant’s business, which constitutes bad faith registration and use of the domain under 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 contested domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors business represents bad faith registration and use of the domain under Policy ¶ 4(b)(iii)); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where a respondent’s website featured hyperlinks to websites competing with the business of a complainant, a respondent’s use of the <redeemaamiles.com> domain name in that manner constituted bad faith disruption under Policy ¶ 4(b)(iii)).
Complainant also alleges, and Respondent does not deny, that Respondent’s use of the <travelocitiy.com> domain name is for the purpose of attracting Internet users to the resolving website. Respondent’s use of Complainant’s TRAVELOCITY mark may confuse Internet users interested in Complainant’s travel related goods and services as to the possibility of Complainant’s sponsorship of or affiliation with the resolving website. Respondent presumably receives click-through fees from the aforementioned hyperlinks. Respondent thus attempts to profit from this confusion. Respondent’s use of the contested domain name as alleged thus constitutes bad faith registration and use of the domain under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a domain name confusingly similar to a competing mark to display links to various third-party websites demonstrated bad faith registration and use of the domain pursuant to Policy ¶ 4(b)(iv)).
Furthermore, Respondent has engaged in typo-squatting by its use of the domain name here in issue. Respondent’s use of the typo-squatted domain name constitutes bad faith registration and use of the domain pursuant to Policy ¶ 4(a)(iii). See The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004): “By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).” See also Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003):
Typosquatting
… is the intentional misspelling of words with [the] intent to intercept and
siphon off traffic from its intended destination, by preying on Internauts who
make common typing errors. Typosquatting
is inherently parasitic and of itself evidence of bad faith.
For these reasons, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <travelocitiy.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: February 3, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum