Travelocity.com LP v. Domain Admin (reg4037453)
Claim Number: FA1209001463937
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Domain Admin (reg4037453) (“Respondent”), Malaysia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <travelodity.com>, registered with Godaddy.com, LLC.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 24, 2012; the National Arbitration Forum received payment on September 24, 2012.
On September 25, 2012, Godaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <travelodity.com> domain name is registered with Godaddy.com, LLC and that Respondent is the current registrant of the name. Godaddy.com, LLC has verified that Respondent is bound by the Godaddy.com, LLC 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 September 25, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 15, 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@travelodity.com. Also on September 25, 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 October 25, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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.
1) Complainant owns trademark registrations with the United States Patent and Trademark Office ("USPTO") for the TRAVELOCITY mark (Reg. No. 2,254,700 registered Jun. 22, 1999).
2) Respondent’s <travelodity.com> domain name is confusingly similar to the TRAVELOCITY mark, merely replacing the letter “c” of the mark with the letter “d” while also adding the irrelevant generic top-level domain (“gTLD”) “.com.”
3) Respondent has not been commonly known by the disputed domain name, and has not been licensed by or legitimately affiliated with Complainant in any way.
4) Respondent is using the disputed domain name to route Internet users to Complainant’s own website through an affiliate program. Such use is not 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).
5) Respondent’s redirection of Internet users to Complainant’s own website in order to take advantage of Complainant’s affiliate program is evidence of bad faith registration and use.
6) Respondent’s typosquatting behavior, as evidenced through the registration of a misspelled version of Complainant’s mark, is further evidence of bad faith.
1) Respondent did not submit a Response. The Panel notes that the Forum has received correspondence from WebNIC.cc, which states that it has received the Complaint from Complainant. WebNIC.cc claims that it is not the disputed domain name’s registrant, but that its company information has been used without its authorization in the Registrant, Administrative, and Technical contact information for the disputed domain name.
1. Complainant has rights in its TRAVELOCITY mark.
2. Respondent’s <travelodity.com> domain name is confusingly similar to Complainant’s mark.
3. Respondent has no rights to or legitimate interests in the domain name.
4. Respondent registered and used the domain name in bad faith.
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 argues that it has protectable rights in the TRAVELOCITY and TRAVELOCITY.COM marks. However, the Panel notes that Complainant only provides complete trademark information for the TRAVELOCITY mark. In that regard, Complainant offers its trademark registration with the USPTO for the TRAVELOCITY mark (Reg. No. 2,254,700 registered Jun. 22, 1999) as evidence of its rights in the mark. The Panel finds that Complainant has established rights in the TRAVELOCITY mark under Policy ¶ 4(a)(i) through its submission of its trademark registration with the USPTO. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant argues that Respondent’s <travelodity.com> domain name is confusingly similar to the TRAVELOCITY mark, because the domain name merely replaces the letter “c” of the mark with the letter “d” while also adding the irrelevant gTLD “.com.” The Panel agrees and finds that Respondent’s disputed domain name is confusingly similar to Complainant’s TRAVELOCITY mark 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 greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also 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).
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.”).
Complainant argues that Respondent has not been commonly known by the disputed domain name and has not been licensed by or legitimately affiliated with Complainant in any way. The Panel notes that the WHOIS information for the disputed domain name identifies “Domain Admin (reg4037453)” as the registrant. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii), where there appears to be no evidence on record to show that Respondent was known by the disputed domain name. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Further, Complainant argues that Respondent is using the disputed domain name to route Internet users to Complainant’s own website through an affiliate program. Complainant contends that such use is not 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). The Panel notes that Complainant’s Exhibit M appears to be the affiliate agreement between the parties but that the agreement itself states that it is between “Commission Junction, Inc.,” and “you.” The Panel also notes that Complainant does not explain this discrepancy. The Panel finds that the parties were subject to a valid affiliate agreement. The Panel agrees with Complainant and finds that Respondent’s use of the disputed domain name to violate Complainant’s affiliate agreement is not 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 Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the respondent’s use of the disputed domain names to divert Internet users attempting to reach the complainant’s website and in breach of the complainant’s affiliate program is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel notes that Complainant does not present an argument under Policy ¶ 4(b)(i)–(iv). However, the Panel finds that it is not restricted to the bad faith factors identified in Policy ¶ 4(b) but that the Panel may make its determinations under Policy ¶ 4(a)(iii) under a totality of the circumstances approach. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant argues that Respondent’s redirection of Internet users to Complainant’s own website in order to take advantage of Complainant’s affiliate program is evidence of bad faith registration and use. Complainant argues that Respondent’s registration and use of the <travelodity.com> domain name is a “direct violation of the affiliate agreement which governs Respondent’s relationship as an affiliate of Complainant.” The Panel notes that Exhibit M is labeled as the “Affiliate Agreement Between Complainant and Respondent,” with the agreement stating that it is between Commission Junction, Inc., and “you.” The Panel notes that Complainant does not explain how the parties in that agreement are related to the parties in the instant UDRP case. The Panel finds that Respondent was in an affiliate agreement with Complainant. The Panel finds that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii) by violating Complainant’s affiliate agreement. 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).
Further, Complainant contends that Respondent’s typosquatting behavior, as evidenced through the registration of a misspelled version of Complainant’s mark, is further evidence of bad faith. The Panel agrees and finds as such under Policy ¶ 4(a)(iii). 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)).
Lastly, Complainant contends that Respondent’s registration of the disputed domain name while it was a member of Complainant’s affiliate program clearly shows that Respondent had actual knowledge of Complainant and its rights in the TRAVELOCITY mark. Complainant argues that this knowledge is further evidence of Respondent’s bad faith registration and use of the disputed domain name. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the TRAVELOCITY mark and holds that such knowledge is evidence of bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <travelodity.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: November 8, 2012
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page