national arbitration forum

 

DECISION

 

TRAVELOCITY.COM LP v. 齐燕杰 / 唐王中拓科技(北京)有限责任公司

Claim Number: FA1206001450104

 

PARTIES

Complainant is TRAVELOCITY.COM LP (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is 齐燕杰 / 唐王中拓科技(北京)有限责任公司 (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com>, registered with eName Technology Co., Ltd.

 

PANEL

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically June 22, 2012; the National Arbitration Forum received payment June 22, 2012.  The Complaint was submitted in both English and Chinese.

 

On June 24, 2012, eName Technology Co., Ltd. confirmed by e-mail to the National Arbitration Forum that the <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names are registered with eName Technology Co., Ltd. and that Respondent is the current registrant of the names.  eName Technology Co., Ltd. verified that Respondent is bound by the eName Technology Co., Ltd. registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On July 3, 2012, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of July 23, 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@tragvelocity.com, postmaster@travdelocity.com, and postmaster@travgelocity.com.  Also on July 3, 2012, the Chinese language 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 July 31, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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.

 

After review of the applicable rules on language of the proceedings under the UDRP, the Panel finds that pursuant to Rule 11(a), the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, that absent a Response, the remainder of the proceedings may be conducted in English.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

 

  1. Complainant alleges:

 

    1. Complainant owns rights in the TRAVELOCITY and TRAVELOCITY.COM marks by virtue of its trademark registrations with the United States Patent and Trademark Office (“USPTO”):

                                          i.    TRAVELOCITY (Reg. No. 2,254,700 registered June 22, 1999) &

                                         ii.    TRAVELOCITY.COM (Reg. No. 2,466,132 registered July 3, 2001).  See Complainant’s Exhibit E.

    1. Respondent registered the <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names earlier than July 13, 2006.  See Complainant’s Exhibit I.
    2. Complainant uses the TRAVELOCITY and TRAVELOCITY.COM marks in connection with consumer-direct travel services.
    3. Respondent’s <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names are confusingly similar to Complainant’s marks because they differ from the marks by the addition of a single letter.
    4. Respondent is not commonly known by the disputed domain names.
    5. Respondent uses the disputed domain names to host websites that feature generic hyperlinks to third-party websites, some of which directly compete with Complainant in the travel industry.  See Complainant’s Exhibit H.
    6. Respondent has been a respondent in a previous UDRP proceeding in which Respondent was ordered to transfer the disputed domain names to the respective complainant.  See Gap, Inc. v. 齐燕杰 唐王中拓科技(北京)有限责任公司, FA 1367655 (Nat. Arb. Forum Mar. 3, 2011).
    7. Respondent holds registrations of other domain names that contain the marks of unrelated, third parties.  See Complainant’s Exhibit O.
    8. Respondent is attempting to take advantage of Complainant’s well-known mark in order to commercially benefit, which is evidence of bad faith registration and use.
    9. Respondent’s typosquatting is evidence of bad faith registration and use.

 

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

 

FINDINGS

 

The disputed domain names are confusingly similar to the mark in which Respondent has rights.

 

Respondent has shown no rights to or legitimate interests in the disputed domain names.

 

Respondent registered and used the disputed domain names 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 the Panel deems applicable."

 

Paragraph 4(a) of the Policy requires Complainant to 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.

 

Given 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 will draw such inferences as the Panel 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.”).

 

Identical to and/or Confusingly Similar

 

According to Complainant, Complainant owns rights in the TRAVELOCITY (Reg. No. 2,254,700 registered June 22, 1999) and TRAVELOCITY.COM marks (Reg. No. 2,466,132 registered July 3, 2001) by virtue of its trademark registrations with the USPTO.  See Complainant’s Exhibit E.  In Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), the panel held that the complainant established rights in its marks by holding trademark registrations with the USPTO.  However, the Panel notes that Respondent does not reside or operate in the United States.  In Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007), the panel held that it does not matter that the complainant did not register its trademark in the country in which the respondent resided and all that matters is that the complainant could establish rights in some jurisdiction.  Consequently, the Panel finds that Complainant has rights in the TRAVELOCITY and TRAVELOCITY.COM marks pursuant to a Policy ¶ 4(a)(i) analysis. 

 

 Complainant contends that Respondent’s <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names are confusingly similar to Complainant’s marks because they differ from the marks by the addition of a single letter.  The Panel notes that Complainant does not specify a mark, so the Panel chooses to use the TRAVELOCITY.COM mark based on a comparison of the mark and the disputed domain names.  In comparing the mark and the disputed domain names, the Panel finds that the disputed domain names all contain the mark in its entirety, along with an additional letter “g” or “d.”  In Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003), the panel found that addition of a letter to a complainant’s mark did not remove the disputed domain name from the realm of confusing similarity. Respondent’s <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY.COM mark under Policy ¶ 4(a)(i).

 

Respondent makes no contentions relative to Policy ¶ 4(a)(i). 

 

The Panel finds that the disputed domain names are confusingly similar to a mark in which Complainant has rights; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).

 

Rights to or Legitimate Interests

 

Complainant 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 of proof 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.”).

 

Complainant contends that Respondent is not commonly known by the disputed domain names.  Complainant claims that the WHOIS information, which identifies the registrant of the disputed domain names as “齐燕杰 / 唐王中拓科技(北京)有限责任公司,” is evidence that Respondent is not commonly known by the <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names.  See Complainant’s Exhibit I.  Moreover, Complainant argues that Respondent is not sponsored by, or affiliated with, Complainant in any way and that Complainant did not grant Respondent permission to use Complainant’s TRAVELOCITY or TRAVELOCITY.COM marks.  In Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007), the panel determined that the respondent was not commonly known by the <lilpunk.com> domain name because there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information and the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name.  Thus, the Panel finds in this case that Respondent is not commonly known by the <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names for the purpose of Policy ¶ 4(c)(ii).

 

Complainant claims that Respondent uses the disputed domain names to host websites that feature generic hyperlinks to third-party websites, some of which directly compete with Complainant in the travel industry.  See Complainant’s Exhibit H.  Complainant contends that Respondent receives click-through fees from the hyperlinks found on the resolving website.  In Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007), the panel found that, where the respondent failed to offer any goods or services on its website other than links to a variety of third-party websites, the respondent was not using the disputed 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). This Panel concurs and finds that Respondent here is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) and is not making a legitimate noncommercial or fair use of the <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names under Policy ¶ 4(c)(iii). 

 

Respondent makes no contentions relative to Policy ¶ 4(a)(ii).

 

The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain names; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith:

 

Complainant asserts that Respondent has been a respondent in a previous UDRP proceeding in which Respondent was ordered to transfer the disputed domain names to the respective complainant.  See Gap, Inc. v. 齐燕杰 唐王中拓科技(北京)有限责任公司, FA 1367655 (Nat. Arb. Forum Mar. 3, 2011).  Complainant also contends that Respondent holds registrations of other domain names that contain the marks of unrelated, third parties.  See Complainant’s Exhibit O.  In Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007), the panel held that prior UDRP proceedings were sufficient evidence of a pattern of bad faith registration.  In Armstrong Holdings, Inc. v. JAZ Assocs., FA 95234 (Nat. Arb. Forum Aug. 17, 2000), the panel found that the respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names that infringe upon others’ famous and registered trademarks.  The Panel notes as well that Respondent registered three domain names that incorporate Complainant’s TRAVELOCITY.COM mark.  In Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000), the panel concluded that one instance of registration of several infringing domain names satisfied the burden imposed by the Policy ¶ 4(b)(ii).  Therefore, the Panel finds that Respondent’s UDRP history, registration of third-party domain names, and registration of the disputed domain names in the instant proceeding are all evidence that Respondent registered and uses the <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names in a pattern of bad faith pursuant to Policy ¶ 4(b)(ii).

 

Complainant contends that Respondent is attempting to take advantage of Complainant’s well-known mark in order to commercially benefit.  Complainant argues that Respondent receives click-through fees from the hyperlinks found on the websites resolving from the disputed domain names.  Complainant claims that Respondent also features content and keywords relating to Complainant’s business in order to further attract consumers.  In Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003), the panel found that the “[r]espondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’” Respondent attempts to create Internet user confusion as to Complainant’s affiliation with the resolving websites in order to commercially benefit from that confusion, and the Panel finds that Respondent registered and uses the <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names in bad faith according to Policy ¶ 4(b)(iv).

 

Finally, Complainant alleges that Respondent’s typosquatting is evidence of bad faith registration and use.  Complainant claims that Respondent is guilty of typosquatting because Respondent altered Complainant’s mark in the disputed domain names by one letter.  The Panel notes that the <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names contain Complainant’s TRAVELOCITY.COM mark and an additional letter “g” or “d.”  In Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003), the panel concluded that the respondent engaged in typosquatting, which the panel treated as evidence of bad faith registration and use under Policy ¶ 4(a)(iii).  Therefore, this Panel finds that Respondent has used typosquatting in this case with Complainant’s mark specifically in mind; the Panel finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(a)(iii).

 

Respondent makes no contentions relative to 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 <tragvelocity.com>, <travdelocity.com>, and  <travgelocity.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

Hon. Carolyn Marks Johnson, Panelist

Dated:  August 14, 2012.  

 

 

 

 

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