Travelocity.com LP v. Nick White
Claim Number: FA1012001364090
Complainant is Travelocity.com LP (“Complainant”), represented by Thomas L. Arnold of Alston & Bird, LLP, Texas, USA. Respondent is Nick White (“Respondent”), Nevada, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <travelozee.com>, registered with Godaddy.com, 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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 17, 2010; the National Arbitration Forum received payment on December 17, 2010.
On December 17, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <travelozee.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 29, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 18, 2011 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@travelozee.com. Also on December 29, 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 January 20, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <travelozee.com> domain name is confusingly similar to Complainant’s TRAVELOCITY.COM mark.
2. Respondent does not have any rights or legitimate interests in the <travelozee.com> domain name.
3. Respondent registered and used the <travelozee.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Travelocity.com LP, provides travel information and reservation services. Complainant uses the TRAVELOCITY.COM mark in connection with these services. Complainant also holds trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the TRAVELOCITY.COM mark (e.g., Reg. No. 2,466,132 issued July 3, 2001).
Respondent, Nick White, registered the <travelozee.com> domain name on November 2, 2010. The disputed domain name resolves to a website that is unrelated to Complainant’s business. The resolving website also displays Complainant’s Florida business license number.
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 claims rights in the TRAVELOCITY.COM mark through its registration of the mark with the USPTO (e.g., Reg. No. 2,466,132 issued July 3, 2001). The Panel finds this trademark registration sufficiently proves Complainant’s rights in the TRAVELOCITY.COM mark under 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 Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Complainant avers Respondent’s <travelozee.com> domain name is confusingly similar to its TRAVELOCITY.COM mark. Prior panels have found that a domain name that is phonetically similar to another’s mark can qualify as confusingly similar under Policy ¶ 4(a)(i). For example, in Barnes & Noble College Bookstores, Inc. v. Leasure Interactive, D2001-1216 (WIPO Mar. 25, 2002), the Panel found that “the domain name <bunsandnoble.com> is confusingly similar to the BARNES & NOBLE marks in so far as the domain name is similar in sound to Complainant’s marks.” Similarly, in America Online, Inc. v. Peppler, FA 103437 (Nat. Arb. Forum Feb. 22, 2002), the Panel stated that “The word ‘quest’ and ‘crest’ are similar in sound and are phonetically similar and thus these two words may be considered confusingly similar. Therefore, confusing similarity exists between <mapcrest.com> and Complainant’s MAP QUEST mark.” In this case, the Panel finds the <travelozee.com> domain name is phonetically similar to the TRAVELOCITY.COM mark. Therefore, the Panel determines that Respondent’s <travelozee.com> domain name is confusingly similar to Complainant’s TRAVELOCITY.COM mark under Policy ¶ 4(a)(i).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first make a prima facie case showing Respondent lacks rights and legitimate interests in the <travelozee.com> domain name under Policy ¶ 4(a)(ii). The burden then shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights and 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 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.”). Despite Respondent’s failure to respond, the Panel will evaluate the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts Respondent is not authorized to use its TRAVELOCITY.COM mark. Moreover, the WHOIS information lists “Nick White” as the registrant of the disputed domain name, which the Panel finds is not similar to the <travelozee.com> domain name. Without evidence to the contrary, the Panel concludes that Respondent is not commonly known by the disputed domain name under 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 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).
Complainant submits a screen shot of the website resolving from the <travelozee.com> domain name. The resolving website displays an image of two people sitting in chairs on a beach. Below the image there is the message “Re-launching on 30th November 2010.” The resolving website also displays text that reads “for call center support enquiry please contact outsourcing@travelozee.com,” “send us your profile with Bidding ID 80-TRA6I,” and “Bidding process starts from 22 November 2010.” In addition, the resolving website displays what Respondent claims is its Airline Reporting Corporation (“ARC”)/International Air Transport Association registration number (“IATA”). Complainant alleges that rather than a legitimate ARC/IATA, Respondent has listed Complainant’s Florida business license number. Complainant argues that Respondent uses the resolving website in an attempt to profit from a fraudulent scheme that offers a “Travelozee campaign” to call centers. The Panel finds that Respondent uses a confusingly similar domain name that is unrelated to Complainant’s mark in an attempt to profit. Therefore, the Panel finds that Respondent does not use the <travelozee.com> domain name to make 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). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (finding that the respondent’s use of a domain name to redirect Internet users to websites unrelated to a complainant’s mark is not a bona fide use under Policy ¶ 4(c)(i)); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
As previously discussed, Respondent uses the disputed domain name in an attempt to profit from a fraudulent scheme. In addition, the <travelozee.com> domain name is confusingly similar to Complainant’s TRAVELOCITY.COM mark. Finally, the website resolving from the disputed domain name displays Complainant’s Florida business license number. Based on the evidence in the record, the Panel finds that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Consequently, the Panel finds that Respondent has engaged in registration and use in bad faith under Policy ¶ 4(b)(iv). See Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith under Policy ¶ 4(b)(iv).”); see also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <travelozee.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: January 31, 2011
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