Orbitz Worldwide, LLC v. A Kiansu
Claim Number: FA1301001482347
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is A Kiansu (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <orbbitz.com>, registered with DOMAIN.COM LLC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 28, 2013; the National Arbitration Forum received payment on January 28, 2013.
On January 29, 2013, DOMAIN.COM LLC confirmed by e-mail to the National Arbitration Forum that the <orbbitz.com> domain name is registered with DOMAIN.COM LLC and that Respondent is the current registrant of the name. DOMAIN.COM LLC has verified that Respondent is bound by the DOMAIN.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 January 30, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 19, 2013 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@orbbitz.com. Also on January 30, 2013, 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 1, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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
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Complainant's Mark,
ORBITZ: |
This Complaint is based on the following factual and legal grounds:
ORBITZ WORLDWIDE, LLC is a
leading global online travel company that uses innovative technology to enable
leisure and business travelers to research, plan and book a broad range of
travel products. Orbitz Worldwide, LLC owns various subsidiaries
(collectively "Orbitz") and a portfolio of consumer brands that
includes Orbitz (orbitz.com),Cheap Tickets (cheaptickets.com), ebookers
(ebookers.com), HotelClub (hotelclub.com), RatesToGo (ratestogo.com), the Away
Network (away.com) and corporate travel brand Orbitz for Business.
Orbitz was originally formed by a group of leading U.S. airlines in 1999 to
participate in the rapidly growing online travel industry. Originally, the
airline investors in Orbitz consisted of American Airlines, Continental
Airlines, Delta Air Lines, Northwest Airlines and United Air Lines. Since
launching its website in 2001, Orbitz became one of the travel industry market
leaders within the United States.
Orbitz was acquired by Cendant Corporation (now Travelport Inc.) in 2004 and
assumed responsibility for Cendant's domestic online travel business, which
included Cheap Tickets, a leading online travel brand focused on the
value-conscious traveler, and for Flairview Travel, which operated the
international online hotel websites HotelClub.com andRatesToGo.com. In February
2005, Cendant acquired ebookers, a leading international online travel brand
with an online presence in 13 countries in Europe. Orbitz Worldwide, LLC was
formed through the combination of Orbitz Inc. and the online travel assets of Cendant's
travel distribution services division and became a public company in July 2007.
Currently Orbitz Worldwide, LLC employs over 1,600 employees in over 20
countries.
The website orbitz.com is widely
used and recognized by consumers has also won awards and recognition. For
instance, Orbitz.com was named
the "Best Website for Booking Travel" in 2006 and the winner of the
2008 Budget Travel Extra Mile Award.
In August 2011, Orbitz announced that its one-of-a-kind, Price Assurance cash
refund program hit the $10 million mark since the program's inception in June
2008. More than 170,000 Price Assurance refund checks totaling $10 million in
refunds had been issued to customers, confirming the Price Assurance promise
that Orbitz customers will always get the lowest Orbitz price. In addition, in
2012, Orbitz Worldwide re-launched the popular Orbitz Flights, Hotels, Cars,
for iPhone app adding major speed improvements, powerful sort and filtering
capabilities and new mapping tools that better highlight the exclusive,
mobile-only hotel discounts. The completely rebuilt Orbitz app is the only
fully native, streamlined in-app search and book experience for flights, hotel
rooms and car rentals.
According to the Complainant's financial earnings report for 2011, the
Complainant reported $767 million in revenue. On August 8, 2012, Orbitz
Worldwide reported its second quarter earnings as of June 30, 2012. Within the
European region, Orbitz grew room nights 3%, consistent with the first quarter,
led by 28% growth at ebookers. The US distribution business grew room -nights
19% ahead of planned launch of the American Express Consumer Travel Network
partnership. Orbitz Worldwide continues to see very strong growth in upcoming
quarters due to the implementation of apps for smartphones and tablets.
In 2011 alone, Orbitz Worldwide, LLC has spent $242M dollars in advertisement
and promotion of the Marks and all of its brands on television, print media and
the Internet through its websites located at Orbitz.com and Cheaptickets.com.
By utilizing a combination of online and traditional offline marketing, its
sales and marketing efforts primarily focus on increasing brand awareness and
driving visitors to its websites through search engine marketing
("SEM"), travel research websites, meta-search travel websites,
display advertising, affiliate programs and email marketing. Orbitz continues
to pursue strategies to improve its online marketing efficiency.
Orbitz Worldwide, LLC owns the Marks cited in Section 4(c) above for which it
has obtained federal trademark registrations. These federal trademark
registrations are valid and subsisting and all but one have become
incontestable through the filing of Section 8 and 15 affidavits with the
USPTO. Based on its federal trademark registrations and extensive use, Orbitz
Worldwide, LLC owns the exclusive right to use the Marks, "Cheap
Tickets" and "Orbitz", in connection with travel agency and
related services.
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[a.] |
The
Disputed Domain Name(s) are nearly identical and confusingly similar to
Complainant's Marks.
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[b.] |
Respondent
has no rights or legitimate interests in respect of the Disputed Domain Name
for the following reasons:
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[c.] |
The
Domain Name should be considered as having been registered and being used in
bad faith for the following reasons:
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B. Respondent
Respondent failed to submit a Response in this proceeding.
(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 not been registered and is not being used 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 Complainant must prove the following three elements to obtain an order cancelling or transferring a domain name:
(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 Orbitz Worldwide, LLC claims to be the leading global online travel company using innovative technology to enable leisure and business travelers to research, plan, and book a broad range of travel products. Complainant claims the website <orbitz.com> is widely used and recognized by consumers and has also won awards and recognition. Complainant owns the trademark registration with the United States Patent & trademark Office (“USPTO”) for the ORBITZ mark (Reg. No. 2,799,051 filed Jan. 19, 2001; registered Dec. 23, 2003). Respondent appears to reside in Vietnam. In Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001), the panel found that Policy ¶4(a)(i) does not require that complainant’s mark be registered in the country in which respondent operates; it is sufficient if the complainant demonstrate its rights to the mark in ‘some’ jurisdiction (not necessarily the respondent’s jurisdiction). Registration of a mark with the USPTO establishes rights in a mark, and the rights relate back to the filing date of the registration. 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 Hershey Co. v. Reaves, FA 967818 (Nat. Arb. Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”). Therefore, the Panel finds Complainant’s registration of the ORBITZ mark with the USPTO adequately demonstrates Complainant’s rights in the mark under Policy ¶4(a)(i).
Complainant claims Respondent’s <orbbitz.com> domain name is confusingly similar to Complainant’s mark because it differs by only a single character from Complainant’s mark. Respondent includes Complainant’s mark and merely adds a single additional letter, “b.” Prior panels have held “the mere addition of a single letter to complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶4(a)(i).” See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) and this Panel agrees. Respondent adds the generic top-level domain name (“gTLD”) “.com.” Adding a gTLD (which is required for a domain name) also does not adequately distinguish Respondent’s domain name from Complainant’s mark under Policy ¶4(a)(i). See Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Nat. Arb. Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant). that Respondent’s <orbbitz.com> domain name is confusingly similar to Complainant’s ORBITZ mark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has 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 claims Respondent has not been commonly known by the disputed domain name. The WHOIS record for the disputed domain name lists “A Kiansu” as the registrant. Complainant claims Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant has not given Respondent permission to use Complainant’s mark in a domain name. In Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006), the panel concluded that respondent was not commonly known by the disputed domain name as there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name. In light of these uncontested facts, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶4(c)(ii).
Complainant argues Respondent is using the disputed domain name to resolve to an empty page featuring no substantive content or links. The website located at Respondent’s <orbbitz.com> is a blank, white page. Respondent has failed to make an active use of the disputed domain name, which means Respondent is certainly not using the disputed domain name for 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). See TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel concludes that Respondent's [failure to make an active use] of the domain name does not establish rights or legitimate interests pursuant to Policy ¶4(a)(ii).”). While Respondent has had the owned the domain name since January 31, 2002, it apparently hasn’t used it at all. If the web site isn’t used at all, Respondent could not have acquired any rights to the domain name.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent’s disputed domain name currently resolves to an inactive site and that alone constitutes bad faith registration and use. That alone isn’t enough. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, <telstra.org>, Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574, <jupiterscasino.com>, Ladbroke Group Plc v. Sonoma International LDC, WIPO Case No. D2002-0131, <ladbrokespoker.com>, and Westdev Limited v. Private Data, WIPO Case No. D2007-1903, <numberone.com>.
Complainant argues Respondent’s disputed domain name is a classic example of typosquatting. The Policy does not mention typosquatting as a ground for finding bad faith registration and use. Did Complainant assert Respondent registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant for more than Respondent paid? No.
Did Complainant asset Respondent registered the domain name to prevent the owner of the trademark from reflecting the mark in a corresponding domain name and Respondent has engaged in a pattern of such conduct? No.
Did Complainant assert Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor? No.
Did Complainant assert Respondent intentionally attempted to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with the Complainant's mark? No.
Why didn’t Complainant make these arguments? This Panel does not know. This Panel is loath to make an argument for a party, especially one represented by an experienced representative. To make these arguments would require the Panel to assume facts not in evidence.
Complainant has failed to meet its burden of proof of bad faith registration and use under Policy ¶4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that the respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶4(a)(iii); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
Respondent has not registered or used the <orbbitz.com> domain name in bad faith if Respondent has not violated any of the factors listed in Policy ¶4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶4(a)(iii). See Societe des Produits Nestle S.A. v. Pro Fiducia Treuhand AG, D2001-0916 (WIPO Oct. 12, 2001) (finding that where the respondent has not attempted to sell the domain name for profit, has not engaged in a pattern of conduct depriving others of the ability to obtain domain names corresponding to their trademarks, is not a competitor of the complainant seeking to disrupt the complainant's business, and is not using the domain name to divert Internet users for commercial gain, lack of bona fide use on its own is insufficient to establish bad faith); see also Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish UDRP ¶4(a)(iii)).
The Panel finds Policy ¶4(a)(iii) NOT satisfied.
This decision is without prejudice to Complainant bringing a further proceeding based upon additional facts.
Having not established all three elements required under the ICANN Policy, the Panel concludes relief shall be DENIED.
Accordingly, it is Ordered the <orbbitz.com> domain REMAIN WITH Respondent.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Friday, March 1, 2013
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