Priceline.com, Inc. v. Web Master Internet Services Private Limited
Claim Number: FA1001001303917
Complainant is Priceline.com, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <preceline.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 20, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 22, 2010.
On January 21, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <preceline.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. 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 January 26, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 16, 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@preceline.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 24, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <preceline.com> domain name is confusingly similar to Complainant’s PRICELINE.COM mark.
2. Respondent does not have any rights or legitimate interests in the <preceline.com> domain name.
3. Respondent registered and used the <preceline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Priceline.com,
Inc., is well-known worldwide for its online travel services. Complainant holds multiple trademark
registrations for the PRICELINE.COM and related marks with the United States
Patent and Trademark Office (“USPTO”) (e.g.,
Reg. No. 2,481,112 issued August 28, 2001).
Respondent, Web Master Internet Services Private Limited, registered the <preceline.com> domain name on November 27, 2005. Respondent’s disputed domain resolves to a directory website displaying links to third-party websites, including Complainant’s website, Complainant’s competitors, and others.
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 owns multiple trademarks for its PRICELINE.COM
and related marks with the USPTO (e.g.,
Reg. No. 2,481,112 issued August 28, 2001).
The Panel finds that Complainant’s ownership of this trademark with the
USPTO sufficiently establishes Complainant’s rights in the mark pursuant to
Policy ¶ 4(a)(i).
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 Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7,
2001) (finding that the Policy does not require that the mark be registered in
the country in which the respondent operates; therefore it is sufficient that
the complainant can demonstrate a mark in some jurisdiction).
Complainant contends that Respondent’s disputed domain name is confusingly similar to Complainant’s PRICELINE.COM mark. Respondent’s disputed domain name <preceline.com> is simply a misspelling of Complainant’s mark, exchanging the “i” in “price” for an “e.” The Panel finds that a simple misspelling that merely exchanges one letter for another is insufficient to distinguish the disputed domain name from 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”). Therefore, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s PRICELINE.COM mark.
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant puts forth a prima facie case, the burden shifts to Respondent to demonstrate that it does have rights and legitimate interests in the disputed domain name according to Policy ¶ 4(c). The Panel finds that Complainant has put forth a sufficient prima facie case in these proceedings. As Respondent failed to respond to the allegations made against it, the Panel may assume that Complainant’s allegations are true and that Respondent lacks any rights and legitimate interests in the disputed domain name. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name). The Panel, however, elects to consider the evidence in record in light of the Policy ¶ 4(c) factors to determine whether Respondent has any rights and legitimate interests in the disputed domain name.
Complainant argues that Respondent is not commonly known by the disputed domain name, concluding that Respondent accordingly lacks rights and legitimate interests. The Panel finds that the WHOIS information for the disputed domain name does not reflect that Respondent is commonly known by the disputed domain name. The WHOIS information, combined with the lack of any further evidence showing that Respondent is commonly known by the disputed domain name, is sufficient to conclude that Respondent is not commonly known by the disputed domain name and accordingly lacks rights and legitimate interests in 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 M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent’s disputed domain name diverts Internet users to a directory website, displaying various third-party links, including links to Complainant and Complainant’s competitors. The operation of such a website presumably benefits Respondent financially through “click-through” fees. The Panel finds that this use of the disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶¶ 4(c)(i) and 4(c)(iii). See Fox News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) (finding that the respondent’s use of the disputed domain name to generate revenue via advertisement and affiliate fees is not a bona fide offering of good or services); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Complainant asserts that Respondent’s use of a common typo of Complainant’s mark as the disputed domain name constitutes typosquatting. Complainant argues that Respondent is using this common mistake in order to redirect Internet users searching for Complainant. The Panel finds these efforts to capture Complainant’s customers and redirect them to the sites in competition with Complainant constitute typosquatting and evidence that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where the respondent used the typosquatted <wwwdewalt.com> domain name to divert Internet users to a search engine webpage, and failed to respond to the complaint).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name
redirects to a website featuring links to third-party providers of services,
some of which compete with Complainant.
The use of such a website and domain name clearly disrupts Complainant’s
business as Internet users arriving at this site may be potential customers
lost for Complainant, despite the Internet users’ initial intentions to seek
out Complainant. The Panel finds that
this disruption of Complainant’s business and diversion of Internet users to
Complainant’s competitors demonstrate bad faith registration and use under
Policy ¶ 4(b)(iii).
See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to
Complainant's mark to divert Internet users to a competitor's website. It is a
reasonable inference that Respondent's purpose of registration and use was to
either disrupt or create confusion for Complainant's business in bad faith
pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); see also Am. Online, Inc. v. Tapia, FA 328159 (Nat.
Arb. Forum Dec. 1, 2004) (“Respondent is referring Internet traffic that seeks
out the <aol.tv> domain name to a
competitor’s news site. The Panel
strongly finds that appropriating Complainant’s mark to refer customers seeking
Complainant to Complainant’s competitors is evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iii).”).
Respondent misspells Complainant’s mark in the disputed
domain to capture Internet users who unknowingly make a typo when entering
Complainant’s mark in an effort to find Complainant’s online presence. Internet users entering the misspelled
version of Complainant’s mark find themselves redirected to a page completely
unaffiliated with Complainant but featuring links to similar goods and
services. It is presumed that Respondent
receives compensation in the form of “click-through” fees when any of the
Internet users subsequently click on the links located at the disputed domain
name’s website. The Panel finds
Respondent’s efforts to mislead people seeking Complainant and attract
Complainant’s business for Respondent’s own personal gain establish bad faith
registration and use under Policy ¶ 4(b)(iv). See
The Panel has previously concluded that Respondent is engaged in the practice of typosquatting through the use of the confusingly similar disputed domain name. The Panel finds Respondent’s practice of typosquatting is evidence in and of itself of bad faith registration and use under 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 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)). Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under 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 <preceline.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: March 10, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum