AGIP LLC v. Jeonggon Seo
Claim Number: FA1202001428545
Complainant is AGIP LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Jeonggon Seo (“Respondent”), Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agodaa.com>, registered with ONLINENIC,
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.
Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 7, 2012; the National Arbitration Forum received payment on February 7, 2012.
On February 9, 2012, ONLINENIC, INC. confirmed by e-mail to the National Arbitration Forum that the <agodaa.com> domain name is registered with ONLINENIC, INC. and that Respondent is the current registrant of the names. ONLINENIC, INC. has verified that Respondent is bound by the ONLINENIC, 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 February 9, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 29, 2012 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@agodaa.com. Also on February 9, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 March 7, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed 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" 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 <agodaa.com> domain name is confusingly similar to Complainant’s AGODA mark.
2. Respondent does not have any rights or legitimate interests in the <agodaa.com> domain name.
3. Respondent registered and used the <agodaa.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AGIP LLC, owns a federal trademark registration with the United States Patent and Trademark Office (“USPTO”) for the AGODA mark (Reg. No. 3,055,915 registered January 31, 2006). Complainant uses the mark to support and promote its online travel services company.
Respondent, Jeonggon Seo, registered the disputed domain name on September 2, 2009. The disputed domain name resolves to a pay-per-click website offering links to online travel service providers. The disputed domain name is also a prototypical example of typosquatting. Respondent has engaged in a pattern of registering infringing domain names.
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 posits that it has established its rights in the AGODA mark by registering it with the USPTO (Reg. No. 3,055,915 registered January 31, 2006). Because Complainant has provided sufficient evidence to establish that the mark is duly registered and that it owns the registration, the Panel determines that Complainant has established its rights in the AGODA mark under Policy ¶ 4(a)(i). See Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”); see also UnitedHealth Group Inc. v. Hassan, FA 947081 (Nat. Arb. Forum May 17, 2007) (finding “no difficulty” in holding that the complainant had established rights in its asserted marks for the purposes of Policy ¶ 4(a)(i) through its trademark registrations with the USPTO); 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 also posits that Respondent’s disputed domain name is confusingly similar to its AGODA mark. Respondent’s <agodaa.com> domain name includes the entire mark, while adding the letter “a” and the generic top-level domain “.com.” Respondent’s disputed domain is a classic example of typosquatting because its composed of a common typographical error that may occur when attempting to type Complainant’s AGODA mark into a web browser. The Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s AGODA mark under Policy ¶ 4(a)(i) because the changes made do nothing to truly differentiate the domain name from the 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 Marriott Int'l, Inc. v. Seocho, FA 149187 (Nat. Arb. Forum Apr. 28, 2003) (finding that the respondent's <marrriott.com> domain name was confusingly similar to the complainant's MARRIOTT mark).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant has successfully shifted the burden of proof to Respondent by making what the Panel finds is a prima facie showing indicating that Respondent lacks rights or legitimate interests in the disputed domain name. See 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.”). Respondent failed to file a response in this matter, which allows the Panel to assume Respondent lacks rights or interests in the disputed domain. See 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.”). However, the Panel will make no such assumptions prior to examining the entire record under Policy ¶ 4(c).
Complainant argues that Respondent is not commonly known by the disputed domain name. Respondent has not provided any evidence to undercut Complainant’s assertion and the WHOIS information identifies the registrant of the disputed domain name as “Jeonggon Seo.” Based on the evidence provided, the Panel concludes that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant also argues that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Respondent’s <agodaa.com> domain name resolves to a pay-per-click website offering links to online travel service providers. Complainant operates in the online travel services industry thereby making the companies linked to Respondent’s website competitors. Based upon Respondent’s use of the disputed domain name, the Panel determines that Respondent is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with 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)).
The Panel notes that Respondent’s disputed domain name contains a typographical error that Internet users may make when attempting to find Complainant’s online: the addition of the letter “a” to Complainant’s mark. Thus, the Panel finds that Respondent is guilty of typosquatting, which is further evidence that Respondent lacks rights and legitimate interests in the disputed domain name. See 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”); see also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”).
Although Complainant fails to argue that an offer to sell the disputed domain name is evidence that Respondent lacks rights in the domain, the Panel notes that a passive offer to sell the domain further supports a finding that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)); see also Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.”).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Complainant contends that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(i) based upon a passive offer of sale included on the website to which the domain resolves. The screenshot of the website confirms Complainant’s contention. The Panel determines that Respondent’s passive offer to sell the disputed domain name from the website to which the disputed domain name resolves provides affirmative evidence of bad faith registration and use under Policy ¶ 4(b)(i). See Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding that the attempted sale of a domain name is evidence of bad faith); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”).
Complainant also contends that Respondent has been a party to multiple adverse UDRP proceedings indicating a pattern that suggests bad faith in this instance. Complainant provided multiple citations to the adverse cases referenced in its Complaint. See Zappos.com, Inc. v. Jeonggon Seo, D2006-0677 (WIPO Aug. 4, 2006); see also Ets Leobert, SARL v. Jeonggon Seo, D2009-0004 (WIPO Apr. 8, 2009). The Panel concludes that Respondent’s prior involvement in adverse UDRP proceedings evidence a pattern of such registrations, indicating that the domain in this were also registered and used in bad faith under Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also Arai Helmet Americas, Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005) (finding that “Respondent has registered the disputed domain name, <aria.com>, to prevent Complainant from registering it” and taking notice of another UDRP proceeding against the respondent to find that “this is part of a pattern of such registrations”).
Complainant claims that Respondent is gaining commercially from the disputed domain name, establishing bad faith registration and use. The disputed domain name resolves to a pay-per-click website that offers links to Complainant’s competitors in the online travel service industry. Respondent presumably generates revenue by diverting the Internet users that arrive at its site to the linked sites and collecting a click-through fee. The Panel finds that Respondent has registered the disputed domain name and has used it in a fashion that demonstrates an expressly commercial purpose, which constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Based upon this Panel’s finding that Respondent has engaged in typosquatting by registering the disputed domain name in its current form, the Panel concludes that Respondent has registered and is using the domain in bad faith under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form); see also 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)).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agodaa.com> domain name be TRANSFERRED from Respondent to Complainant.
Karl V. Fink (Ret.), Panelist
Dated: March 9, 2012
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page