Travelocity.com LP v. Bladimir Boyiko
Claim Number: FA1205001446051
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Bladimir Boyiko (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <traveliocity.com>, registered with Enom, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 29, 2012; the National Arbitration Forum received payment on May 29, 2012.
On May 29, 2012, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <traveliocity.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 June 4, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 25, 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@traveliocity.com. Also on June 4, 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 June 27, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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:
Respondent’s <traveliocity.com> domain name, the domain name at issue, is confusingly similar to Complainant’s TRAVELOCITY mark.
Respondent does not have any rights or legitimate interests in the domain name at issue.
Respondent registered and used the domain name at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant Travelocity is a leading provider of consumer-direct travel services for the leisure and business traveler. It markets and distributes travel-related products and services directly to individuals using its mark TRAVELOCITY and its various brand websites and contact centers. Complainant registered the TRAVELOCITY mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,254,700 registered June 22, 1999). Respondent’s <traveliocity.com> domain name is identical and/or confusingly similar to Complainant’s TRAVELOCITY mark. Respondent has not been commonly known by the disputed domain name and is not sponsored by or affiliated with Complainant in any way, nor has Respondent been given permission by Complainant to use Complainant’s TRAVELOCITY mark. Respondent resolves the disputed domain name to a website offering links to companies that compete with Complainant. Respondent registered the disputed domain name on May 24, 2001. Respondent has been subject to previous adverse UDRP proceedings and also holds other typosquatted domain names relating to the marks of third parties.
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."
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.
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.”).
Complainant established rights in the TRAVELOCITY mark when it registered the mark with the USPTO (e.g., Reg. No. 2,254,700 registered June 22, 1999). Based upon the evidence offered, the Panel concludes that Complainant established its rights in the TRAVELOCITY mark under Policy ¶ 4(a)(i). See Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (finding trademark registration with the USPTO was adequate to establish rights pursuant to Policy ¶ 4(a)(i)); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Respondent’s <traveliocity.com> domain name is identical and/or confusingly similar to Complainant’s TRAVELOCITY mark. Respondent has made two additions to the disputed domain name: the letter “i” and the generic top-level domain (“gTLD”) “.com.” Respondent failed to sufficiently differentiate the disputed domain name from Complainant’s TRAVELOCITY mark, and Respondent’s <traveliocity.com> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). 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 Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding the respondent’s <microssoft.com> domain name to be confusingly similar to the complainant’s MICROSOFT mark because they differ by only one letter, and “such a small alteration is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)”).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t 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 UDRP ¶ 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 AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Respondent has not been commonly known by the disputed domain name. Complainant states that Respondent is not sponsored by or affiliated with Complainant in any way, nor has Respondent been given permission by Complainant to use Complainant’s TRAVELOCITY mark. The WHOIS information identifies the registrant of the disputed domain name as “Bladimir Boyiko.” Thus, the Panel concludes that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent has engaged in typosquatting. The disputed domain name includes an additional letter along with Complainant’s entire mark, which means the domain name is merely a typographic error of Complainant’s TRAVELOCITY mark. The Panel concludes that Respondent lacks rights and legitimate interests in the domain name 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’”.
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent has been subject to previous adverse UDRP proceedings and also holds other typosquatted domain names relating to the marks of third parties. Complainant has submitted prior UDRP decisions to support the claim regarding Respondent’s history as a serial cybersquatter. See Univision Comm’cs Inc. v. Boyiko, FA 1429870 (Nat. Arb. Forum Mar. 22, 2012); see also Verizon Trademark Services, LLC v. Boyiko, FA 1382148 (Nat. Arb. Forum May 12, 2011); see also GEICO v. Boyiko, D2010-1180 (WIPO Aug. 30, 2010). The Panel finds that Respondent has engaged in a pattern of bad faith registration which supports a finding of bad faith in this matter under Policy ¶ 4(b)(ii). See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”); see also N.H. Sweepstakes Comm’n v. We Web Well, Inc., FA 197499 (Nat. Arb. Forum Nov. 3, 2003) (finding that the complainant’s submission of WHOIS evidence that listed the respondent as the registrant of other domain names incorporating third-party trademarks was sufficient to establish that the respondent had a pattern of registering and using domain names in bad faith pursuant to Policy ¶ 4(b)(ii)).
Respondent is attempting to take advantage of Complainant’s mark to achieve commercial gain. Respondent resolves the disputed domain name to a website offering links to companies that compete with Complainant, like Orbitz and Expedia. Respondent is using the disputed domain name in this manner to confuse Internet users into clicking on the links offered and then gaining commercially from the activity. Accordingly, the Panel concludes that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See 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).”).
Respondent has engaged in typosquatting. The disputed domain name is merely a typographic error of Complainant’s TRAVELOCITY mark. The Panel notes that the disputed domain name does include a single additional letter, “i,” which is immediately adjacent to the letter “o” on the classic QWERTY keyboard. 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)).
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 <traveliocity.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 27, 2012
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