Priceline.com, Inc. v. Jose Garcia c/o General Delivery
Claim Number: FA1002001307050
Complainant is Priceline.com, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <pricesline.com>, registered with Hebei International Trading ( Shanghai) Co., 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.
Louis E. Condon, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 5, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 9, 2010. The Complaint was submitted in both Portuguese and English.
On February
8, 2010, Hebei International Trading (
On February 11, 2010, a Portuguese language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 3, 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@pricesline.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 9, 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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Portuguese language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <pricesline.com> domain name is confusingly similar to Complainant’s PRICELINE.COM mark.
2. Respondent does not have any rights or legitimate interests in the <pricesline.com> domain name.
3. Respondent registered and used the <pricesline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Priceline.com, Inc., operates its online travel services worldwide. Complainant holds multiple trademark registrations for the PRICELINE and related marks with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,272,659 issued August 24, 1999).
Respondent, Jose Garcia c/o General Delivery, registered the <pricesline.com> domain name on June 30, 2001. Respondent’s disputed domain name resolves to a portal website featuring many links to third-party websites that are unrelated to 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 its PRICELINE and related marks with the USPTO (e.g., Reg. No. 2,272,659 issued August 24, 1999). 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 argues that Respondent’s disputed domain name is confusingly similar to Complainant’s PRICELINE mark. Respondent’s disputed domain name <pricesline.com> is simply a misspelling of Complainant’s PRICELINE mark, adding an “s” and the generic top-level domain (“gTLD”) “.com” to Complainant’s mark. The Panel finds that an addition of an “s” to Complainant’s mark is insufficient to prevent confusing similarity with Complainant’s mark. 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 Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the additions of the letter “s” and generic top-level domains to the disputed <barnesandnobles.info> and <barnesandnobles.biz> domain names failed to avoid the confusing similarity between the domain names and the complainant’s BARNESANDNOBLE.COM mark pursuant to Policy ¶ 4(a)(i)). The addition of a gTLD is irrelevant in a Policy ¶ 4(a)(i) analysis and likewise does not distinguish the disputed domain name from Complainant’s mark. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant). Therefore, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s PRICELINE 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 establishes a prima facie case, the burden shifts to Respondent to demonstrate that it does possess rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). The Panel finds that Complainant has sufficiently presented a prima facie case in these proceedings. As Respondent failed to respond to the allegations 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). 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 asserts that Respondent is not commonly known by
the disputed domain name and accordingly lacks rights and legitimate interests
in the disputed domain name. The Panel
finds that the WHOIS information for the disputed domain name lists the
registrant as “Jose Garcia,” which is evidence that Respondent is not commonly
known by the disputed domain name. The
WHOIS information and 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, and lacks rights and legitimate interests
in, the disputed domain name according to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in
Respondent’s WHOIS information implies that Respondent is ‘commonly known by’
the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see
also
Respondent’s disputed domain name diverts Internet users to a directory website displaying third-party links to various unrelated websites. The Panel presumes that such a website benefits Respondent by compensating Respondent financially through “click-through” fees every time an Internet user clicks on one of the links displayed on the page. 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 Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Complainant asserts that Respondent’s use of a common typographical
error in 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 intending customers and redirect
them to Respondent’s unaffiliated site constitute typosquatting and serve as
evidence that Respondent lacks rights and legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
Registration
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Respondent misspells Complainant’s mark in the disputed
domain name in order to capture Internet users who unknowingly make a typographical
error when they enter Complainant’s mark trying to find Complainant’s online
presence. Internet users entering the
misspelled version of Complainant’s mark find themselves redirected to a
webpage completely unaffiliated with Complainant that displays links that
financially compensate Respondent through “pay-per-click” fees when clicked. The Panel finds Respondent’s efforts to
mislead people seeking Complainant in order to attract Complainant’s business
for Respondent’s own personal gain 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 name <pricesline.com>. 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.
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 <pricesline.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: March 19, 2010
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