Travelocity.com LP v. Domain Explorer
Claim Number: FA1003001312527
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <5ravelocity.com>, <6ravelocity.com>,
<fravelocity.com>, <gravelocity.com>, <rravelocity.com>,
<t4avelocity.com>, <t5avelocity.com>, <tdavelocity.com>,
<tfavelocity.com>, <tragelocity.com>, <trav3locity.com>,
<trav4locity.com>, <travdlocity.com>, <travel9city.com>,
<travelkcity.com>, <traveloc8ty.com>, <traveloc9ty.com>,
<traveloci5y.com>, <traveloci6y.com>, <travelocify.com>,
<travelocit6.com>, <travelocit7.com>, <travelocitg.com>,
<travelocitt.com>, <travelocjty.com>, <travelockty.com>,
<travelofity.com>, <travepocity.com>, <travslocity.com>,
<trwvelocity.com> and <trzvelocity.com>,
registered with Enom, Inc.
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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 10, 2010.
On March
11, 2010, Enom, Inc. confirmed by
e-mail to the National Arbitration Forum that the <5ravelocity.com>, <6ravelocity.com>, <fravelocity.com>,
<gravelocity.com>, <rravelocity.com>, <t4avelocity.com>,
<t5avelocity.com>, <tdavelocity.com>, <tfavelocity.com>,
<tragelocity.com>, <trav3locity.com>, <trav4locity.com>,
<travdlocity.com>, <travel9city.com>, <travelkcity.com>,
<traveloc8ty.com>, <traveloc9ty.com>, <traveloci5y.com>,
<traveloci6y.com>, <travelocify.com>, <travelocit6.com>,
<travelocit7.com>, <travelocitg.com>, <travelocitt.com>,
<travelocjty.com>, <travelockty.com>, <travelofity.com>,
<travepocity.com>, <travslocity.com>, <trwvelocity.com>
and <trzvelocity.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 March 12, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 1, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@5ravelocity.com, postmaster@6ravelocity.com, postmaster@fravelocity.com, postmaster@gravelocity.com, postmaster@rravelocity.com, postmaster@t4avelocity.com, postmaster@t5avelocity.com, postmaster@tdavelocity.com, postmaster@tfavelocity.com, postmaster@tragelocity.com, postmaster@trav3locity.com, postmaster@trav4locity.com, postmaster@travdlocity.com, postmaster@travel9city.com, postmaster@travelkcity.com, postmaster@traveloc8ty.com, postmaster@traveloc9ty.com, postmaster@traveloci5y.com, postmaster@traveloci6y.com, postmaster@travelocify.com, postmaster@travelocit6.com, postmaster@travelocit7.com, postmaster@travelocitg.com, postmaster@travelocitt.com, postmaster@travelocjty.com, postmaster@travelockty.com, postmaster@travelofity.com, postmaster@travepocity.com, postmaster@travslocity.com, postmaster@trwvelocity.com and postmaster@trzvelocity.com. Also on March 12, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 12, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <5ravelocity.com>, <6ravelocity.com>, <fravelocity.com>, <gravelocity.com>, <rravelocity.com>, <t4avelocity.com>, <t5avelocity.com>, <tdavelocity.com>, <tfavelocity.com>, <tragelocity.com>, <trav3locity.com>, <trav4locity.com>, <travdlocity.com>, <travel9city.com>, <travelkcity.com>, <traveloc8ty.com>, <traveloc9ty.com>, <traveloci5y.com>, <traveloci6y.com>, <travelocify.com>, <travelocit6.com>, <travelocit7.com>, <travelocitg.com>, <travelocitt.com>, <travelocjty.com>, <travelockty.com>, <travelofity.com>, <travepocity.com>, <travslocity.com>, <trwvelocity.com> and <trzvelocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY mark.
2. Respondent does not have any rights or legitimate interests in the <5ravelocity.com>, <6ravelocity.com>, <fravelocity.com>, <gravelocity.com>, <rravelocity.com>, <t4avelocity.com>, <t5avelocity.com>, <tdavelocity.com>, <tfavelocity.com>, <tragelocity.com>, <trav3locity.com>, <trav4locity.com>, <travdlocity.com>, <travel9city.com>, <travelkcity.com>, <traveloc8ty.com>, <traveloc9ty.com>, <traveloci5y.com>, <traveloci6y.com>, <travelocify.com>, <travelocit6.com>, <travelocit7.com>, <travelocitg.com>, <travelocitt.com>, <travelocjty.com>, <travelockty.com>, <travelofity.com>, <travepocity.com>, <travslocity.com>, <trwvelocity.com> and <trzvelocity.com> domain names.
3. Respondent registered and used the <5ravelocity.com>, <6ravelocity.com>, <fravelocity.com>, <gravelocity.com>, <rravelocity.com>, <t4avelocity.com>, <t5avelocity.com>, <tdavelocity.com>, <tfavelocity.com>, <tragelocity.com>, <trav3locity.com>, <trav4locity.com>, <travdlocity.com>, <travel9city.com>, <travelkcity.com>, <traveloc8ty.com>, <traveloc9ty.com>, <traveloci5y.com>, <traveloci6y.com>, <travelocify.com>, <travelocit6.com>, <travelocit7.com>, <travelocitg.com>, <travelocitt.com>, <travelocjty.com>, <travelockty.com>, <travelofity.com>, <travepocity.com>, <travslocity.com>, <trwvelocity.com> and <trzvelocity.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Travelocity.com
LP, holds a trademark registration for its TRAVELOCITY mark with the United
States Patent and Trademark Office (“USPTO”) (Reg. No. 2,254,700 issued
Respondent, Domain Explorer,
registered the disputed domain names on
July 21, 2002. The disputed domain names
resolve to inactive websites.
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 TRAVELOCITY mark through
its holding of a registration for the TRAVELOCITY mark with the USPTO (Reg. No.
2,254,700 issued June 22, 1999). The Panel finds that Complainant has
established rights in the TRAVELOCITY 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 Intel Corp. v. Macare,
FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the
complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE
marks by registering the marks with the USPTO).
Complainant argues that Respondent’s disputed domain names
are confusingly similar to Complainant’s TRAVELOCITY mark pursuant to Policy ¶
4(a)(i).
Respondent’s disputed domain names are confusingly similar because they
replace a letter in Complainant’s mark with a letter or number adjacent on the
QWERTY keyboard and add the generic top-level domain (“gTLD”) “.com.” The Panel finds that the misspelling of
Complainant’s mark that replaces a letter in Complainant’s mark with a letter
or number adjacent on the QWERTY keyboard creates a confusing similarity
between the disputed domain names and Complainant’s mark. See
Toronto-Dominion Bank v. Karpachev, D2000-1571
(WIPO Jan. 15, 2001) (finding that the domain names <tdwatergouse.com>
and <dwaterhouse.com> are virtually identical to the complainant’s TD
WATERHOUSE name and mark); see also 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.”). The Panel also finds that the addition of a
gTLD to registered mark is irrelevant in distinguishing a disputed domain name
and a mark. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation
of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Jerry Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. 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 AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”). Nevertheless, 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).
Complainant asserts that Respondent is neither commonly known by the disputed domain names, nor has Complainant given Respondent permission to use Complainant’s mark. Respondent is not sponsored by or legitimately affiliated with Complainant’s mark.
The WHOIS information for the disputed domain name lists the registrant as “Domain Explorer.” Without evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain names 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 resolve to inactive websites. The Panel finds that Respondent’s failure to make an active use of the disputed domain names is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question); see also Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for 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)).
Complainant argues that Respondent is engaged in “typosquatting” by using a typographical error in the confusingly similar disputed domain names. The Panel finds that Respondent is using common misspellings of Complainant’s TRAVELOCITY mark to divert Internet users to Respondent’s websites. Therefore, the Panel finds that Respondent has no rights or legitimate interests under Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that it may consider the totality of the
circumstances when conducting a Policy ¶ 4(a)(iii)
analysis, and that it is not limited to the enumerated factors in Policy ¶
4(b). See Do The
Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he
examples [of bad faith] in Paragraph 4(b) are intended to be illustrative,
rather than exclusive.”).
The Panel finds that Respondent’s failure to make an active use of the disputed domain names is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Disney Enters. Inc. v. Meyers, FA 697818 (Nat. Arb. Forum June 26, 2006) (holding that the non-use of a disputed domain name for several years constitutes bad faith registration and use under Policy ¶ 4(a)(iii); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith).
As established previously, Respondent has engaged in the practice of typosquatting by using a common mistyping of Complainant’s TRAVELOCITY mark to misdirect Internet users. The Panel finds typosquatting is itself evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See 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)); see also Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (“Respondent’s registration and use of the disputed domain name demonstrates a practice commonly referred to as ‘typosquatting.’ This practice diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”).
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 <5ravelocity.com>, <6ravelocity.com>, <fravelocity.com>, <gravelocity.com>, <rravelocity.com>, <t4avelocity.com>, <t5avelocity.com>, <tdavelocity.com>, <tfavelocity.com>, <tragelocity.com>, <trav3locity.com>, <trav4locity.com>, <travdlocity.com>, <travel9city.com>, <travelkcity.com>, <traveloc8ty.com>, <traveloc9ty.com>, <traveloci5y.com>, <traveloci6y.com>, <travelocify.com>, <travelocit6.com>, <travelocit7.com>, <travelocitg.com>, <travelocitt.com>, <travelocjty.com>, <travelockty.com>, <travelofity.com>, <travepocity.com>, <travslocity.com>, <trwvelocity.com> and <trzvelocity.com> domain names be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: April 27, 2010
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