Travelocity.com LP v. Venta c/o Leonard Bogucki a/k/a The data in Bulkregister.com's WHOIS database is p c/o NA a/k/a Registrate Co. c/o NA NA
Claim Number: FA1001001301381
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <travelocidy.com>, <travelocite.com>, <travelocitu.com>, <travelocityt.com>, <travelociyt.com>, <travelocoity.com>, and <traveloocity.com>, registered with Enom, 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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 4, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 5, 2010.
On January 5, 2010, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <travelocidy.com>, <travelocite.com>, <travelocitu.com>, <travelocityt.com>, <travelociyt.com>, <travelocoity.com>, and <traveloocity.com> domain names are registered with Enom, Inc. and that Respondent is the current registrant of the names. Enom, Inc. has verified that Respondent is bound by the Enom, 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 January 8, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 28, 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@travelocidy.com, postmaster@travelocite.com, postmaster@travelocitu.com, postmaster@travelocityt.com, postmaster@travelociyt.com, postmaster@travelocoity.com, postmaster@traveloocity.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 5, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <travelocidy.com>, <travelocite.com>, <travelocitu.com>, <travelocityt.com>, <travelociyt.com>, <travelocoity.com>, and <traveloocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY mark.
2. Respondent does not have any rights or legitimate interests in the <travelocidy.com>, <travelocite.com>, <travelocitu.com>, <travelocityt.com>, <travelociyt.com>, <travelocoity.com>, and <traveloocity.com> domain names.
3. Respondent registered and used the <travelocidy.com>, <travelocite.com>, <travelocitu.com>, <travelocityt.com>, <travelociyt.com>, <travelocoity.com>, and <traveloocity.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Travelocity.com LP, is an online travel booking
company that promotes its services under the TRAVELOCITY mark. Complainant registered the TRAVELOCITY mark
with the United States Patent and Trademark Office (“USPTO”)
Respondent registered the disputed domain names on or after October 28, 2000. The disputed domain names each redirect to the same website that features links to third-party websites that compete with Complainant for business.
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
the domain name has been registered
and is being used in bad faith.
Preliminary
Issue: Multiple Respondents
In the instant proceedings, Complainant alleged that the entities that control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends the disputed domain names share similarities in their registrant e-mail addresses, as well as their registration dates. Furthermore, Complainant contends each disputed domain name redirects to the exact same website. Also, Complainant provides UDRP precedent in which contact information found in the WHOIS information for the disputed domain names in the instant proceedings have been found to be an alias for “Alex Vorot.” See Yahoo! Inc. and HotJObs.com, Ltd. v. Vorot, FA 159547 (Nat. Arb. Forum Jul. 16, 2003) (finding the multiple named respondent’s were aliases for “Alex Vorot”).
The Panel finds that Complainant presented sufficient evidence the disputed domain names are controlled by the same entity and thus chooses to proceed with the instant proceedings on the merits.
Complainant has provided evidence of the registration of its
TRAVELOCITY mark with the USPTO. The
Panel finds that Complainant has established rights in the TRAVELOCITY mark for
purposes of Policy ¶ 4(a)(i) through its trademark
registration with the USPTO (Reg. No. 2,254,700 issued June 22, 1999). See Microsoft Corp. v. Burkes, FA 652743 (Nat.
Arb. Forum
Complainant contends that Respondent’s
disputed domain names are confusingly similar to its TRAVELOCITY
mark. The <travelocidy.com>, <travelocite.com>,
<travelocitu.com>, <travelocityt.com>, <travelociyt.com>,
<travelocoity.com>, and <traveloocity.com>
domain names domain names differ because: (1) a letter has been substituted in the
mark; or (2) a letter has been added to the mark; and (3) the generic top-level
domain (“gTLD”) “.com” has been added. The
Panel finds none of these alterations sufficiently distinguish these disputed
domain names from Complainant’s TRAVELOCITY mark. Therefore, the Panel finds Respondent’s
disputed domain names are confusingly similar to Complainant’s mark pursuant to
Policy ¶ 4(a)(i).
See Neuberger Berman Inc. v. Jacobsen, D2000-0323
(WIPO June 12, 2000) (finding that the respondent’s <newbergerberman.com>
domain name was confusingly similar to the complainant’s NEUBERGER BERMAN mark
despite the slight difference in spelling); see also 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 Nev. State Bank v. Modern Ltd. – Cayman Web
Dev., FA 204063 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the disputed domain names. Under Policy ¶ 4(a)(ii), after the complainant makes a prima facie case against the respondent, the respondent then has the burden of showing evidence that it does have rights and legitimate interests in the disputed domain names. The Panel finds that Complainant has made a prima facie case under Policy ¶ 4(a)(ii). Respondent has not responded to the Complaint in this case. See Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Complainant contends that Respondent is not commonly known
by the disputed domain names nor
has it ever been the owner or licensee of the TRAVELOCITY
mark. The WHOIS records for the disputed
domain names do not indicate Respondent has ever been commonly known by any
variation of the disputed domain names.
This evidence, along with the fact that Respondent has failed to show
any evidence contrary to Complainant’s contentions, compels the Panel to find
that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v.
Kaner, FA 768859
(Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was
not commonly known by the <shoredurometer.com> and
<shoredurometers.com> domain names because the WHOIS information listed
Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of
the disputed domain names and there was no other evidence in the record to
suggest that the respondent was commonly known by the domain names in dispute); see also Am.
Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb.
Forum
The disputed domain names each redirect to the same website that features links to websites offering the products and services of Complainant’s competitors in the travel services industry. The Panel finds Respondent’s use of the disputed domain names is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use 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 confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the use of the disputed domain name to operate a website displaying links to competing goods and services was not 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)).
Furthermore, Complainant asserts that Respondent is engaging
in typosquatting through its use of the disputed domain names. A respondent engages in typosquatting when it
registers a domain name that is a common misspelling of a complainant’s mark
and takes advantage of that misspelling.
The Panel agrees Respondent has engaged in typosquatting in regards to
the disputed domain names and thus finds Respondent lacks rights and legitimate
interests in the disputed
domain names 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 Microsoft Corp. v.
Domain Registration
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends the
disputed domain names each redirect to the same website
that features links to websites
offering the products and services of Complainant’s competitors.
The Panel finds that Respondent’s use of the disputed domain names disrupts Complainant’s business, and
is evidence of registration and use in bad faith pursuant to Policy ¶ 4(b)(iii). See Disney
Enters., Inc. v. Noel, FA 198805 (Nat.
Arb. Forum
Complainant also contends that Respondent is gaining
commercially through this diversion, through click-through fees that Respondent
is presumably receiving from its use of the disputed domain names. The Panel
finds Respondent is intentionally using the disputed domain names for commercial gain through a
likelihood of confusion with Complainant’s mark. Therefore, pursuant to Policy ¶ 4(b)(iv), the Panel finds Respondent’s use of the disputed
domain names for commercial gain also constitutes evidence of registration and
use in bad faith. 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 Asbury Auto. Group, Inc. v.
Finally, Respondent’s engagement in typosquatting through its registration and use of the disputed domain names constitutes bad faith registration and use under Policy ¶ 4(a)(iii) because Respondent is taking advantage of a common misspelling of Complainant’s TRAVELOCITY mark. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
The Panel finds 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 <travelocidy.com>, <travelocite.com>, <travelocitu.com>, <travelocityt.com>, <travelociyt.com>, <travelocoity.com>, and <traveloocity.com> domain names be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: February 17, 2010
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