national arbitration forum

 

DECISION

 

Travelocity.com LP v. Crystal Image Pty Ltd c/o Antonio Marques a/k/a Lidnick Webcorp Inc c/o Lidnick Webcorp a/k/a Luchichang Pty Ltd c/o Luchichang Luchichang a/k/a Netmilo c/o Stoyan Bagdanov a/k/a Orel Hlasek LLC c/o Orel Hlasek a/k/a Volchar Pty Ltd c/o Domain Administrator

Claim Number: FA1007001337670

 

PARTIES

Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Crystal Image Pty Ltd c/o Antonio Marques a/k/a Lidnick Webcorp Inc c/o Lidnick Webcorp a/k/a Luchichang Pty Ltd c/o Luchichang Luchichang a//ka Netmilo c/o Stoyan Bagdanov a/k/a Orel Hlasek LLC c/o Orel Hlasek a/k/a Volchar Pty Ltd c/o Domain Administrator (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <dravelocity.com>, <trawelocity.com>, <traveloceity.com>, <traveoocity.com>, <travelocigy.com>, and <travelocityi.com>, registered with Godaddy.com

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.

 

Terry F. Peppard as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on July 27, 2010.

 

On July 29, 2010, Godaddy.com confirmed by e-mail to the National Arbitration Forum that the <dravelocity.com>, <trawelocity.com>, <traveloceity.com>, <traveoocity.com>, <travelocigy.com>, and <travelocityi.com> domain names are registered with Godaddy.com and that Respondent is the current registrant of the names.  Godaddy.com has verified that Respondent is bound by the Godaddy.com 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 August 3, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 23, 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@dravelocity.com, postmaster@trawelocity.com, postmaster@traveloceity.com, postmaster@traveoocity.com, postmaster@travelocigy.com, and postmaster@travelocityi.com by e-mail.  Also on August 3, 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 August 31, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.

 

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" 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:

 

Complainant markets travel-related products and services to both leisure and business travelers, and also offers access to pricing information and special offers for airlines, hotels, car rental companies, cruise lines, and vacation and last-minute travel packages. 

 

Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the TRAVELOCITY.COM and related marks, including Reg. No. 2,466,132, issued July 3, 2001.

 

Respondent has no affiliation with Complainant that gives Respondent rights to use Complainant’s mark in the disputed domain names. 

 

Respondent registered the disputed domain names on June 22, 2004. 

 

The disputed domain names all redirect Internet users to Complainant’s website at the <travelocity.com> domain name through Complainant’s affiliate program.

 

Respondent uses the domain names in this fashion in order to receive money in the form of affiliate commissions.

 

Respondent’s <dravelocity.com>, <trawelocity.com>, <traveloceity.com>, <traveoocity.com>, <travelocigy.com> and <travelocityi.com> domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark.

 

Respondent is not commonly known by the disputed domain names.

 

Respondent registered misspelled versions of Complainant’s mark that result from common typographical errors in order to capitalize on the fame of Complainant’s mark, and thereby to attract the attention of unsuspecting Internet users. 

 

Respondent does not have any rights to or legitimate interests in the <dravelocity.com>, <trawelocity.com>, <traveloceity.com>, <traveoocity.com>, <travelocigy.com> and <travelocityi.com> domain names.

 

Respondent registered and uses the <dravelocity.com>, <trawelocity.com>, <traveloceity.com>, <traveoocity.com>, <travelocigy.com>, <travelocityi.com> domain names in bad faith.

 

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

 

FINDINGS

(1)   the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights; and

(2)   Respondent has no rights to or legitimate interests in respect of any of the domain names; and

(3)   the domain names were registered and are being used in bad faith.

 

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 a 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:

 

i.         the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

ii.       Respondent has no rights or legitimate interests in respect of the domain name; and

iii.      the domain name has been registered and is being used in bad faith.

 

Preliminary Issue: Multiple Respondents

 

Complainant alleges that the entities which control each of the disputed domain names 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.”  Complainant has presented sufficient evidence to satisfy us that the disputed domain names are controlled by the same entity.  We thus elect to proceed with an analysis of the allegations as to all of the challenged domain names.

 

Identical and/or Confusingly Similar

 

Complainant owns trademark registrations with the USPTO for the trademark TRAVELOCITY.COM.  Such registrations are proof of Complainant’s rights in the TRAVELOCITY.COM mark for the purposes of Policy ¶ 4(a)(i), notwithstanding that Respondent lives or operates outside the jurisdiction in which the mark is registered. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that a complainant established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO);  see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for purposes of paragraph 4(a)(i) of the Policy whether a complainant’s mark is registered in a country other than that of a respondent’s place of business, it being sufficient that it has rights in its mark in some jurisdiction. 

 

Respondent’s domain names are confusingly similar to Complainant’s highly distinctive trademark TRAVELOCITY.COM because the disputed domains are all variations on common typographical errors in the spelling of Complainant’s mark.  The disputed domains all either replace one letter in Complainant’s mark with a different letter or insert an additional letter into the mark.  Modifying Complainant’s mark by exchanging or adding a letter fails to avoid a finding of confusing similarity under Policy ¶ 4(a)(i).  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 tendency to be confusingly similar to the mark where the mark is highly distinctive); see also The Royal Bank of Scotland Grp. plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006):

 

The Panel finds that merely by misspelling Complainants’ mark, Respondent has not sufficiently differentiated the … domain name from the … mark under Policy ¶ 4(a)(i).

 

Therefore, the Panel concludes that Respondent’s domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark pursuant to Policy ¶ 4(a)(i).

Rights or Legitimate Interests

 

Under Policy ¶ 4(a)(ii), Complainant must present a prima facie case against Respondent on the point that Respondent lacks rights to and legitimate interests in the disputed domain names.  The burden of proof then shifts to Respondent to demonstrate that it nonetheless has such rights or interests.  See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that:

 

[C]omplainant must first make a prima facie case that respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to respondent to show it does have rights or legitimate interests.

 

We are satisfied that Complainant has met its burden of proof under this head of the Complaint, and that, by failing to respond to the Complaint, Respondent has failed of its burden of proof .  We are therefore free to conclude that Complainant’s allegations are true and that Respondent does not possess rights to or legitimate interests in any of the disputed domain names.  See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000):

 

Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.

 

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.” 

 

We nevertheless elect to examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain names which are cognizable under the Policy.

 

We begin by noting that Complainant alleges, and Respondent does not deny, that Respondent has no affiliation with Complainant that gives Respondent rights to use Complainant’s mark in the disputed domain names, and that Respondent is not commonly known by the disputed domain names. Moreover, the WHOIS information for the disputed domain names indicates no relationship between any of the domain names and the identity of the respective registrants.  On this record, we conclude that Respondent has not demonstrated that it is not commonly known by any of the disputed domain names so as to have acquired rights to or legitimate interests in them within the meaning of Policy ¶ 4(c)(ii).  See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that, without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).

 

Complainant also asserts, without objection from Respondent, that Respondent uses the misspelled versions of Complainant’s mark in the disputed domain names to redirect Internet users to Complainant’s actual website at the <travelocity.com> domain name in order to earn affiliate commissions.  This behavior by Respondent is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the contested domain names under Policy ¶ 4(c)(iii).  See Sports Auth. Mich., Inc. v. Jablome, FA 124861 (Nat. Arb. Forum Nov. 4, 2002) (by enrolling in a complainant’s affiliate program upon registering the domain name, which was a misspelling of the complainant’s mark, a respondent intended to use the domain name to generate profit at that complainant’s expense, thereby evidencing a lack of rights and legitimate interests in the domain name under Policy ¶¶ 4(c)(i) and (iii)); see also Cricket Commc’ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (concluding that a respondent had no rights to or legitimate interests in disputed domain names containing a complainant’s marks even though it was a part of that complainant’s affiliate program, because the pertinent affiliate agreement expressly stated that affiliates could not register domain names containing that complainant’s mark).

 

Complainant also contends that Respondent registered misspelled versions of Complainant’s mark that result from common typographical errors in order to capitalize on the fame of Complainant’s mark, and thereby to attract the attention of unsuspecting Internet users.  This practice is known as typo-squatting, which evidences a lack of rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).  See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, a respondent engaged in:

 

typosquatting, which provides additional evidence that respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).

 

See also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003): “Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”

 

The Panel thus finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

 

Respondent profits from its registration of the disputed domain names in the manner described above.  Respondent’s attempt to use Complainant’s mark to attract Complainant’s customers in order to profit at Complainant’s expense indicates bad faith registration and use of all of the contested domain names for purposes of Policy ¶ 4(b)(iv).  See Sports Auth. Mich., Inc. v. Skander, FA 135598 (Nat. Arb. Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” and therefore registered and used the domain name in bad faith); see also Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding that a respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting Internet users to a complainant’s <deluxeforms.com> domain name, thus receiving a commission from that complainant through its affiliate program).

 

Moreover, Respondent has engaged in the practice of typo-squatting through its registrations of disputed domain names confusingly similar to Complainant’s distinctive mark.  Typo-squatting is itself evidence of bad faith registration and use of the disputed domain names under Policy ¶ 4(a)(iii).  See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003):

 

Respondent’s registration and use of [the contested] domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).

 

See also K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that a respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking a complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evidencing typo-squatting, and therefore bad faith pursuant to Policy ¶ 4(a)(iii)).

 

For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

 

DECISION

Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.

 

Accordingly, it is Ordered that the <dravelocity.com>, <trawelocity.com>, <traveloceity.com>, <traveoocity.com>, <travelocigy.com>, and <travelocityi.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.

 

 

Terry F. Peppard, Panelist

Dated:  September 6, 2010 

 

 

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