Priceline.com, Inc. v. N NA c/o Seocho aka The data in Bulkregister.com's WHOIS database is p () c/o NA
Claim Number: FA1002001307428
Complainant is Priceline.com, Inc. (“Complainant”), represented by CitizenHawk, Inc., CA. Respondent is N NA c/o Seocho aka The data in Bulkregister.com's WHOIS database is p () c/o NA (“Respondent”), KR.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <oriceline.com>, <peiceline.com>, <pricceline.com>, <pricelinne.com>, <priiceline.com>, and <prriceline.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 February 9, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 10, 2010.
On February 10, 2010, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <oriceline.com>, <peiceline.com>, <pricceline.com>, <pricelinne.com>, <priiceline.com>, and <prriceline.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 February 18, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 10, 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@oriceline.com, postmaster@peiceline.com, postmaster@pricceline.com, postmaster@pricelinne.com, postmaster@priiceline.com, and postmaster@prriceline.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 17, 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 <oriceline.com>, <peiceline.com>, <pricceline.com>, <pricelinne.com>, <priiceline.com>, and <prriceline.com> domain names are confusingly similar to Complainant’s PRICELINE mark.
2. Respondent does not have any rights or legitimate interests in the <oriceline.com>, <peiceline.com>, <pricceline.com>, <pricelinne.com>, <priiceline.com>, and <prriceline.com> domain names.
3. Respondent registered and used the <oriceline.com>, <peiceline.com>, <pricceline.com>, <pricelinne.com>, <priiceline.com>, and <prriceline.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Priceline.com, Inc., provides travel agency services, including making reservations and bookings for transportation and providing information in connection with these bookings. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the PRICELINE mark (e.g., Reg. No. 2,272,659 issued August 24, 1999).
Respondent registered the <oriceline.com>, <peiceline.com>, <pricceline.com>, <pricelinne.com>, <priiceline.com>, and <prriceline.com> domain names on or after April 17, 2001. The disputed domain names redirect Internet users to another website displaying links to websites that compete with Complainant’s 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
(3) the domain name has been registered and is being used in bad faith.
Complainant asserts rights in its PRICELINE mark through its registration of its PRICELINE mark with the USPTO (e.g., Reg. No. 2,272,659 issued August 24, 1999). The Panel finds Complainant has established rights in the PRICELINE mark under Policy ¶ 4(a)(i) through its registration with the USPTO. 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 claims Respondent’s <oriceline.com>, <peiceline.com>, <pricceline.com>,
<pricelinne.com>, <priiceline.com>, and <prriceline.com>
domain names are confusingly similar to Complainant’s PRICELINE mark. Each of the disputed domain names either
replaces or adds a letter to Complainant’s mark. Respondent also adds the generic top-level
domain (“gTLD”) “.com” to Complainant’s mark in each of the disputed domain
names. The Panel finds these changes do not render Respondent’s disputed domain
names distinct from the Complainant’s mark.
Therefore, the Panel concludes that Respondent’s <oriceline.com>, <peiceline.com>,
<pricceline.com>, <pricelinne.com>, <priiceline.com>,
and <prriceline.com> domain names are confusingly
similar to Complainant’s PRICELINE mark.
See 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); 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 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”); see also Google Inc. v. Jon G., FA 106084 (Nat.
Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar
to the complainant’s GOOGLE mark and noting that “[t]he transposition of two
letters does not create a distinct mark capable of overcoming a claim of
confusing similarity, as the result reflects a very probable typographical
error”).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant must make a prima facie case showing Respondent lacks rights or legitimate interests in the <oriceline.com>, <peiceline.com>, <pricceline.com>, <pricelinne.com>, <priiceline.com>, and <prriceline.com> domain names. The burden then shifts to Respondent to prove it has rights or legitimate interests in the disputed domain names. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights or legitimate interests. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also 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.”). Although Respondent has failed to respond, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c).
The WHOIS information does not indicate that Respondent is commonly known by the disputed domain names. Complainant asserts Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant also has not given Respondent permission to use Complaint’s mark in a domain name. Without evidence to the contrary, the Panel finds Respondent is not commonly known by the disputed domain name pursuant 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 Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent’s disputed domain names redirect Internet users
to another website with links to third-party websites that directly compete
with Complainant’s travel agency services.
The Panel finds Respondent’s use of the disputed domain names does not
constitute a bona fide offering of
goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial fair
use under Policy ¶ 4(c)(iii). See Computer
Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum
Sept. 8, 2000) (finding that the respondent’s website, which is blank but for
links to other websites, is not a legitimate use of the domain names); see also Jerry Damson, Inc. v.
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds Respondent’s use of the disputed domain names to redirect Internet users to another website that lists third-party websites that directly compete with Complainant’s business disrupts Complainant’s business and constitutes registration and use in bad faith pursuant to Policy ¶ 4(b)(iii). See 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)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors) .
The Panel finds Respondent use of confusingly similar domain names to attract Internet users seeking Complainant’s services and then diverting them to third-party competing websites is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). Respondent presumably profits from this use through the receipt of click-through fees, which the Panel finds constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also 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).
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 <oriceline.com>, <peiceline.com>, <pricceline.com>, <pricelinne.com>, <priiceline.com>, and <prriceline.com> domain names be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: March 30, 2010
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