national arbitration forum

 

DECISION

 

Travelocity.com LP v. Nathalie Cannon a/k/a Madison Vang a/k/a Reece Andrews a/k/a Jishin Pacheco a/k/a Ian Hewitt a/k/a Brown French a/k/a Sabina Cummings a/k/a Melissa Colon a/k/a Kamryn Dean a/k/a Ronald Hahn a/k/a Hailey Mills a/k/a Anissa Hester a/k/a Caden Kidd a/k/a Estelle Jackson a/k/a Sari Hamilton

Claim Number: FA1004001318890

 

PARTIES

 

Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Nathalie Cannon a/k/a Madison Vang a/k/a Reece Andrews a/k/a Jishin Pacheco a/k/a Ian Hewitt a/k/a Brown French a/k/a Sabina Cummings a/k/a Melissa Colon a/k/a Kamryn Dean a/k/a Ronald Hahn a/k/a Hailey Mills a/k/a Anissa Hester a/k/a Caden Kidd a/k/a Estelle Jackson a/k/a Sari Hamilton (“Respondent”), Oregon, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

 

The domain names at issue are  <rtravelocity.com>, <trabvelocity.com>, <travbelocity.com>, <traveklocity.com>, <travelkocity.com>, <travelocithy.com>, <travelociuty.com>, <travelociyty.com>, <travelocxity.com>, <traveloxcity.com>, <travelpocity.com>, <travrelocity.com>, <travwelocity.com>, <trsavelocity.com> and <ytravelocity.com>, registered with Enom, Inc.

 

PANEL

 

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

 

Complainant submitted a Complaint to the National Arbitration Forum electronically on April 12, 2010.

 

On Apr 14, 2010, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <rtravelocity.com>, <trabvelocity.com>, <travbelocity.com>, <traveklocity.com>, <travelkocity.com>, <travelocithy.com>, <travelociuty.com>, <travelociyty.com>, <travelocxity.com>, <traveloxcity.com>, <travelpocity.com>, <travrelocity.com>, <travwelocity.com>, <trsavelocity.com> and <ytravelocity.com> domain names is 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 April 19, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 10, 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@rtravelocity.com, postmaster@trabvelocity.com, postmaster@travbelocity.com, postmaster@traveklocity.com, postmaster@travelkocity.com, postmaster@travelocithy.com, postmaster@travelociuty.com, postmaster@travelociyty.com, postmaster@travelocxity.com, postmaster@traveloxcity.com, postmaster@travelpocity.com, postmaster@travrelocity.com, postmaster@travwelocity.com, postmaster@trsavelocity.com and postmaster@ytravelocity.com.  Also on April 19, 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 May 18, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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.

 

RELIEF SOUGHT

 

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

 

PARTIES' CONTENTIONS

 

A.  Complainant makes the following assertions:

 

1.      Respondent’s <rtravelocity.com>, <trabvelocity.com>, <travbelocity.com>, <traveklocity.com>, <travelkocity.com>, <travelocithy.com>, <travelociuty.com>, <travelociyty.com>, <travelocxity.com>, <traveloxcity.com>, <travelpocity.com>, <travrelocity.com>, <travwelocity.com>, <trsavelocity.com> and <ytravelocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark.

 

2.      Respondent does not have any rights or legitimate interests in the <rtravelocity.com>, <trabvelocity.com>, <travbelocity.com>, <traveklocity.com>, <travelkocity.com>, <travelocithy.com>, <travelociuty.com>, <travelociyty.com>, <travelocxity.com>, <traveloxcity.com>, <travelpocity.com>, <travrelocity.com>, <travwelocity.com>, <trsavelocity.com> and <ytravelocity.com> domain names.

 

3.      Respondent registered and used the <rtravelocity.com>, <trabvelocity.com>, <travbelocity.com>, <traveklocity.com>, <travelkocity.com>, <travelocithy.com>, <travelociuty.com>, <travelociyty.com>, <travelocxity.com>, <traveloxcity.com>, <travelpocity.com>, <travrelocity.com>, <travwelocity.com>, <trsavelocity.com> and <ytravelocity.com> domain names in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 

Complainant, Travelocity.com LP, holds a trademark registration for its TRAVELOCITY.COM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,466,132 issued July 3, 2001) in connection with transportaion reservation services including airline reservation services, rental cars, hotel services and arranging travel tours via a global computer network.

 

Respondent registered the disputed domain names on February 2, 2004.  The disputed domain names all resolve to <orbitz.com> which is a direct competitor of Complainant in the travel services industry.  Respondent presumably receives click-through fees through the redirection of Internet users to the resolving website.

 

 

 

DISCUSSION

 

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.

 

Multiple Respondents

 

In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases.  Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”  The Panel finds that Complainant has presented sufficient evidence that the disputed domain names are controlled by the same entity.

 

Identical and/or Confusingly Similar

 

Complainant asserts rights in its TRAVELOCITY.COM mark through its holding of a trademark registration with the USPTO (Reg. No. 2,466,132 issued July 3, 2001).  The Panel finds that Complainant has established rights in its TRAVELOCITY.COM mark pursuant to 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 Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)).

 

Complainant argues that Respondent’s disputed domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark pursuant to Policy ¶ 4(a)(i).  Respondent’s disputed domain names all merely add an additional letter to the entirety of Complainant’s mark.  The Panel finds that the addition of a single letter to a complainant’s mark is not sufficient to negate a finding of confusing similarity under Policy ¶ 4(a)(i).  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) (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 <rtravelocity.com>, <trabvelocity.com>, <travbelocity.com>, <traveklocity.com>, <travelkocity.com>, <travelocithy.com>, <travelociuty.com>, <travelociyty.com>, <travelocxity.com>, <traveloxcity.com>, <travelpocity.com>, <travrelocity.com>, <travwelocity.com>, <trsavelocity.com> and <ytravelocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark pursuant to Policy ¶ 4(a)(i). 

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Complainant argues that Respondent lacks rights and legitimate interests in the disputed domain name.  Complainant is first required to make a prima facie case in support of its allegations at which point the burden then shifts to Respondent to prove that it does have rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).  The Panel finds that Complainant has established a prima facie case in its Complaint.  Respondent has failed to submit a Response to these proceedings from which the Panel can infer that Respondent lacks rights or legitimate interests in the disputed domain name.  See Hanna-Barbera Prods., Inc. v. Entertainment Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).  Nevertheless, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name.

 

Complainant asserts that Respondent is not commonly known by the disputed domain name and that Complainant has not authorized, licensed or otherwise permitted Respondent to use its mark in a domain name.  Complainant alleges that the WHOIS information for the disputed domain names does not indicate that Respondent is commonly known by the disputed domain names.  Without any evidence in the record 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 registered the disputed domain names on February 2, 2004.  The disputed domain names all resolve to <orbitz.com> which is a direct competitor of Complainant in the travel services industry.  Complainant alleges that Respondent receives affiliate fees for each Internet user who subsequently accesses the resolving website.  The Panel finds that Respondent’s use of the disputed domain names is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).

 

Complainant argues that Respondent is using a typographical error in the confusingly similar disputed domain names to redirect Internet users to the resolving website of Complainant’s competitor from which Respondent presumably  receives affiliate fees.  The Panel agrees and finds that Respondent’s use constitutes typosquatting and as such Respondent lacks rights or legitimate interests in the disputed domain names pursuant to 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 Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Respondent is using the disputed domain names to redirect Internet users to <orbitz.com> a website of Complainant’s competitor in the travel services industry.  Thus Internet users intending to purchase goods and services from Complainant may unintentionally purchase those same goods and services from a competitor rather than from Complainant.  The Panel finds that Respondent’s use of the disputed domain names constitutes a disruption of Complainant’s business pursuant to Policy ¶ 4(b)(iii).  See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also America Online, Inc. v. Tapia, FA 328159 (Nat. Arb. Forum Dec. 1, 2004) (“Respondent is referring Internet traffic that seeks out the <aol.tv> domain name to a competitor’s news site.  The Panel strongly finds that appropriating Complainant’s mark to refer customers seeking Complainant to Complainant’s competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).

 

Respondent uses the confusingly similar disputed domain names to intentionally attract Internet users seeking Complainant’s products and services to Respondent’s website that redirects Internet users to a website of Complainant’s competitor in the travel services industry.  Complainant alleges, and the Panel can infer, that Respondent receives affiliate fees from Complainant’s competitor based on these redirections.  Therefore, the Panel finds that this is sufficient evidence that Respondent registered and used the disputed domain names pursuant to Policy ¶ 4(b)(iv).  See Gardens Alive, Inc. v. D&S Linx, FA 203126 (Nat. Arb. Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).

 

As established previously, Respondent has engaged in the practice of typosquatting by using an intentional misspelling of Complainant’s TRAVELOCITY.COM mark.  The panel finds that typosquatting is itself evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)); see also Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.).

 

Complainant also argues that Respondent’s use of false and misleading WHOIS contact information is further evidence of bad faith.  The Panel agrees and finds that Respondent’s failure to provide accurate WHOIS information is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See Home Dir., Inc. v. HomeDirector, D2000-0111, (WIPO Apr. 11, 2000) (finding that providing false or misleading information in connection with the registration of the domain name is evidence of bad faith); see also Video Direct Distribs. Inc. v. Video Direct, Inc., FA 94724 (Nat. Arb. Forum June 5, 2000) (finding that the respondent acted in bad faith by providing incorrect information to the registrar regarding the owner of the registered name).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii). 

 

DECISION

 

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <rtravelocity.com>, <trabvelocity.com>, <travbelocity.com>, <traveklocity.com>, <travelkocity.com>, <travelocithy.com>, <travelociuty.com>, <travelociyty.com>, <travelocxity.com>, <traveloxcity.com>, <travelpocity.com>, <travrelocity.com>, <travwelocity.com>, <trsavelocity.com> and <ytravelocity.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

Bruce E. Meyerson, Panelist

Dated:  May 20, 2010

 

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