Travelocity.com LP v. RAKSHITA MERCANTILE PRIVATE LIMITED
Claim Number: FA1001001305139
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <travenocity.com> and <trazelocity.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd.
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.
Louis E. Condon 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, Directi Internet Solutions Pvt. Ltd. d/b/a Publicd confirmed by e-mail to the National Arbitration Forum that the <travenocity.com> and <trazelocity.com> domain names are registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicd and that Respondent is the current registrant of the names. Directi Internet Solutions Pvt. Ltd. d/b/a Publicd has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicd 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@travenocity.com and postmaster@trazelocity.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 Louis E. Condon 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 <travenocity.com> and <trazelocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark.
2. Respondent does not have any rights or legitimate interests in the <travenocity.com> and <trazelocity.com> domain names.
3. Respondent registered and used the <travenocity.com> and <trazelocity.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Travelocity.com LP, is a leading provider of consumer-direct travel services. Complainant holds valid trademark registrations for the TRAVELOCITY.COM and related marks with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,466,132 issued July 3, 2001).
Respondent, RAKSHITA MERCANTILE PRIVATE LIMITED, registered the <travenocity.com> and <trazelocity.com> marks on January 10, 2007. Respondent’s disputed domain names resolve to portal websites advertising numerous links to third-party websites, some of which compete 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.
Complainant owns multiple trademarks for the TRAVELOCITY.COM and related marks with the USPTO (e.g., Reg. No. 2,466,132 issued July 3, 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), even when the Respondent operates in a country where the trademark is not registered. 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 KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant asserts that Respondent’s disputed domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark. Respondent’s disputed domain names are both one-letter variations of Complainant’s mark. The <travenocity.com> domain name exchanges an “n” for the “l” and the <trazelocity.com> exchanges a “z” for the “v.” In both cases, the disputed domain name differs in only letter from Complainant’s distinctive mark, which the Panel finds insufficient to distinguish the disputed domain names 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 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). Therefore, the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s mark.
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain names. Once Complainant establishes a prima facie case, the burden shifts to Respondent to demonstrate that it does have rights and legitimate interests in the disputed domain names. In this case, the Panel finds that Complainant has adequately presented a prima facie case. Respondent’s failure to respond to Complainant’s allegation allows the Panel to infer that Complainant’s allegations are true in that Respondent lacks rights and legitimate interests in the disputed domain names. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). The Panel, however, elects to consider the evidence in the record in light of the Policy ¶ 4(c) factors to determine if Respondent has any rights and legitimate interests in the disputed domain names.
Complainant asserts that Respondent is not commonly known by the disputed domain names. There is no information in the record suggesting or supporting that Respondent is commonly known by the disputed domain names. The WHOIS information for both domain names identifies the registrants as “Rakshita Mercantile Private Limited,” a name distinct from either of the two disputed domain names. Accordingly, the Panel concludes from the lack of evidence that Respondent is not commonly known by, and consequently lacks rights and legitimate interests in, the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
Respondent’s disputed domain names divert users to Internet
sites with no function other than linking Internet users to other websites
generically listed on Respondent’s sites.
The Panel finds that this use is insufficient to qualify as a bona fide offering of goods or services
under Policy ¶ 4(c)(i) or a legitimate noncommercial
or fair use pursuant to Policy ¶ 4(c)(iii) and does not grant Respondent rights
or legitimate interests in the disputed domain names. See Hewlett-Packard Co. v. Collazo, FA 144628 (Nat. Arb.
Forum Mar. 5, 2003) (holding that the respondent’s use of the
<hpcanada.com> domain name to post links to commercial websites and
subject Internet users to pop-up advertisements was not a bona fide offering
of goods or services or a legitimate noncommercial or fair use of the domain
name); see also Constellation Wines
Complainant argues that Respondent changed only one letter in each of the disputed domain names in order to take advantage of Internet users’ typos to cause them to end up on Respondent’s website instead of Complainant’s. The Panel finds that intentionally using a typo in the disputed domain to capture Complainant’s customers is typosquatting, which evidences Respondent’s lack of 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 names resolve to websites featuring a variety of third-party links for services and products, some of which compete with Complainant. Using the disputed domain names in this manner clearly disrupts Complainant’s business because Complainant’s intending potential customers are diverted from Complainant’s website and distracted by competing services and companies. The Panel finds that Respondent’s activities in impeding Internet users’ ability to reach Complainant’s website demonstrate bad faith registration and use under Policy ¶ 4(b)(iii). See Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant); 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 names, using common typos to catch Internet users making mistakes when
entering Complainant’s marks. These
unsuspecting Internet users are subsequently diverted to Respondent’s websites,
which advertise competing services in a variety of links. Respondent presumably receives financial
compensation in the form of “click-through” fees every time one of the
advertised links is clicked. The Panel
finds Respondent’s efforts to attract Complainant’s potential business for
Respondent’s own benefit establish bad faith registration and use under Policy
¶ 4(b)(iv).
The Panel has previously concluded that Respondent is engaged in the practice of typosquatting through the use of the confusingly similar disputed domain names. 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 Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <travenocity.com> and <trazelocity.com> domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: March 15, 2010
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