Priceline.com, Inc. v. Whois-Privacy.net Ltd c/o DN Manager
Claim Number: FA1001001305038
Complainant is Priceline.com, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Whois-Privacy.net Ltd c/o DN Manager (“Respondent”), Vanuatu.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <preiceline.com>, registered with Fabulous.com Pty Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 26, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 27, 2010.
On January 27, 2010, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <preiceline.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 January 29, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 18, 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@preiceline.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 1, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 <preiceline.com> domain name is confusingly similar to Complainant’s PRICELINE.COM mark.
2. Respondent does not have any rights or legitimate interests in the <preiceline.com> domain name.
3. Respondent registered and used the <preiceline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Priceline.com,
Inc., is an international provider of 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, Whois-Privacy.net Ltd c/o DN Manager, registered the <preiceline.com> domain name on March 25, 2002. Respondent’s disputed domain name redirects to a website advertising links to other third-party providers of services similar to or in competition with Complainant.
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.
The Panel finds that holding a trademark registration for
PRICELINE.COM with the USPTO is sufficient proof that Complainant owns 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).
Respondent’s <preiceline.com> domain name is confusingly similar to Complainant’s PRICELINE.COM mark. Respondent’s disputed domain misspells Complainant’s mark, including an extra “e” in the mark. The Panel finds that the addition of an extra letter to Complainant’s mark does not prevent confusing similarity between Complainant’s mark and the disputed domain name. 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 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). 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 and that Respondent therefore lacks rights and legitimate interests in the disputed domain name. The WHOIS information for the disputed domain name does not indicate that the registrant is commonly known by the disputed domain name, and Respondent has failed to provide other evidence linking it to the disputed domain name. Therefore, the Panel finds that the Respondent is not commonly known by the disputed domain name and lacks rights and legitimate interests in the disputed domain according to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); 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 name leads to a website advertising various services provided by third parties, many in competition with Complainant. It is presumed that Respondent operates this website as a commercial venture, profiting when Internet users click on any of the links displayed on the webpage. The Panel finds that maintaining a website of this sort is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and (4)(c)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant 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)); see also 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).
Complainant contends that Respondent’s disputed domain <preiceline.com> is simply a misspelling of Complainant’s PRICELINE.COM mark designed to cause Internet users who are otherwise seeking Complainant to arrive at Respondent’s website. The Panel finds such use of a typing error to redirect Complainant’s customers to a site in competition with Complainant constitutes typosquatting and constitutes evidence that Respondent lacks rights and legitimate interests in the disputed domain name according to Policy ¶ 4(a)(ii). See Amazon.com, Inc. v. J J Domains, FA 514939 (Nat. Arb. Forum Sept. 2 2005) (“respondent lacks rights and legitimate interests in the <www-amazon.com> domain name because respondent's addition of the prefix "www-" to complainant's AMAZON.COM mark constitutes typosquatting.”); 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 domain name resolves to a generic website featuring a variety of third party links related to, but not affiliated with, Complainant. Respondent’s operation of this website disrupts Complainant’s business as Internet users originally seeking Complainant are instead confronted with multiple competing services or businesses. The Panel finds that these disruptive practices demonstrate bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also 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)).
Respondent misspells Complainant’s mark in the disputed domain name to benefit from a common typing error made when Internet users attempt to search for Complainant. These internet users who misspell Complainant’s mark are redirected to Respondent’s website offering numerous links related to Complainant’s services. Respondent profits from “pay-per-click” fees if any of these diverted Internet users click on the links displayed. Respondent is clearly attempting to mislead these Internet users and subsequently profit, evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See 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).”); see also 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).
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 <preiceline.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 15, 2010
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