Orbitz Worldwide, LLC v. Venkateshwara Distributor Private Limited.
Claim Number: FA1302001483727
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California. Respondent is Venkateshwara Distributor Private Limited. (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cheaptickeys.com> and <cheapticlets.com>, registered with Pdr Ltd. D/B/A Publicdomainregistry.Com, TIRUPATI DOMAINS AND HOSTING PRIVATE LIMITED.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 6, 2013; the National Arbitration Forum received payment on February 6, 2013.
On February 8, 2013 and on February 11, 2013, Pdr Ltd. D/B/A Publicdomainregistry.Com, TIRUPATI DOMAINS AND HOSTING PRIVATE LIMITED confirmed by e-mail to the National Arbitration Forum that the <cheaptickeys.com> and <cheapticlets.com> domain names are registered with Pdr Ltd. D/B/A Publicdomainregistry.Com, TIRUPATI DOMAINS AND HOSTING PRIVATE LIMITED, and that Respondent is the current registrant of the names. Pdr Ltd. D/B/A Publicdomainregistry.Com, TIRUPATI DOMAINS AND HOSTING PRIVATE LIMITED has verified that Respondent is bound by the Pdr Ltd. D/B/A Publicdomainregistry.Com, TIRUPATI DOMAINS AND HOSTING PRIVATE LIMITED 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 28, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 20, 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@cheaptickeys.com, postmaster@cheapticlets.com. Also on February 28, 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 29, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
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.
Complainant has United States Patent and Trademark Office (“USPTO”) trademark registrations for CHEAP TICKETS, CHEAPTICKETS.COM, and CHEAP TICKETS INC. as well as other related marks.
Complainant's registration of a mark with a trademark authority is sufficient to confer rights in the mark pursuant to Policy 4(a)(i). It is irrelevant for the purposes of Policy ¶ 4(a)(i) whether Complainant registered the mark in the country where Respondent operates or resides. The top level domain name is also irrelevant.
The at-issue domain names are confusingly similar to Complainant's marks because they differs by only a single character from Complainant's marks, or because it differs by only the juxtaposition of two characters when compared to Complainant's marks.
The at-issue domain names are a classic example of "typosquatting". The practice of typosquatting is designed to take advantage of Internet users' typographical errors, which means the names must be confusingly similar by design.
Respondent has not been commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). Where, as here, "the WHOIS information suggests Respondent is known as" an entity other than the trademark associated with Complainant, and Complainant has not "licensed, authorized, or permitted Respondent to register domain names incorporating Complainant's... mark," a Panel should find that the Respondent is not commonly known by the at-issue domain name.
Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant has not given Respondent permission to use Complainant's trademarks in a domain name.
Complainant sent Respondent a "Cease and Desist" letter on two occasions. The letter informed Respondent that it was infringing on Complainant's IP rights and allowed the Respondent the opportunity to respond if they have any IP rights. There was no response to the letter.
Respondent is using the at-issue domain names to redirect unsuspecting Internet users to websites featuring generic links to third-party websites, some of which directly compete with Complainant's business. Presumably, Respondent receives pay-per-click fees from the linked websites. As such, Respondent is not using the at-issue domain names to provide a bona fide offering of goods or services as allowed under Policy; 4(c)(i), nor a legitimate noncommercial or fair use as allowed under Policy; 4(c)(iii).
Respondent registered the disputed domain names after Complainant acquired rights in its relevant marks.
Respondent's typosquatting behavior is, in and of itself, evidence of bad faith.
Respondent's bad faith is further shown by Respondent’s using the at-issue domain names’ website in connection with generating revenue as a "click through" website. Respondent’s setting up of a “click through” website for which it likely receives revenue for each misdirected Internet user clearly demonstrates Respondent’s bad faith. Therefore, Respondent has registered and used the at-issue domain names in bad faith pursuant to Policy ¶4(b)(iv) by using the at-issue domain names to attract and mislead consumers for its own profit.
The pay-per-click links displayed on Respondent’s resolving websites promotes products that compete with Complainant. These links divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business. The Panel should find that this effort to divert consumers and disrupt Complainant’s business is evidence of bad faith registration and use under Policy.
Respondent is a recalcitrant, serial cybersquatter / typosquatter. Searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of such behavior.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has USPTO trademark registrations for CHEAP TICKETS, CHEAPTICKETS.COM, and CHEAP TICKETS INC. as well as other related marks.
Respondent is not authorized to use any of Complainant’s trademarks.
The at-issue domain names were each registered after Complainant acquired trademark right in its relevant marks.
Respondent is using the at-issue domain names to redirect unsuspecting Internet users to a website featuring generic pay-per-click links to third-party websites, some of which that directly compete with Complainant's business.
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.”).
Respondent’s at-issue domain names are each confusingly similar to a mark in which Complainant has rights.
Complainant demonstrates it has rights in a mark under Policy ¶ 4(a)(i) by showing it registered relevant trademarks with the USPTO. 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).”). It is insignificant to Policy ¶ 4(a)(i) analysis that Respondent may be located outside the jurisdiction of the trademark registrar. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Each of the two at-issue domain names is a common misspelling of Complainant’s trademarks (less any space therein) and differs from Respondent’s relevant marks only by one or more insignificant letters. Therefore, the Panel concludes that under Policy ¶ 4(a)(i) each of the at-issue domain names is confusingly similar to a mark in which Complainant has rights. Victoria's Secret v. Zuccarini, FA95762 (Nat. Arb. Forum November 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant's marks). See Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)).
Respondent lacks both rights and legitimate interests in respect of each of the at‑issue domain names. Respondent is not authorized to use Complainant’s trademarks in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of any the at‑issue domain names.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent is not commonly known by either of the at-issue domain names within the meaning of Policy ¶ 4(c)(ii). WHOIS derived information identifies the domain names’ registrant as “Venkateshwara Distributor Private Limited” and there is no evidence before the Panel which suggests that Respondent is known by either of the at-issue domain names notwithstanding the contrary indication by the WHOIS information. Therefore, the Panel finds that Respondent is not commonly known by either of the at-issue domain names under 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).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of each of the at-issue domain name pursuant to Policy ¶4(a)(ii).
Each at‑issue domain names was registered, and is being used, in bad faith. As discussed below, Policy ¶4(b) bad faith circumstance are present, as well as non-Policy ¶4(b) circumstances, from which the Panel concludes that Respondent acted in bad faith under Policy ¶4(a)(iii).
Respondent’s use of the at-issue domain names is designed to divert Internet users to websites that display hyperlinks to Complainant’s competitors. This use is likely to disrupt Complainant’s business. Respondent’s use of the domain name in this manner shows bad faith registration and use of each domain name pursuant to Policy ¶ 4(b)(iii).H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”). Furthermore, the misleading nature of the confusingly similar at-issue domain names in conjunction with their use to address websites displaying competing pay-per-click links, demonstrates bad faith under Policy ¶4 (a)(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).”); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
Respondent’s bad faith is also apparent given that Respondent undoubtedly had actual knowledge of Complainant’s trademark rights at the time it registered the domain names. Respondent’s incorporation of common misspellings of Complainant’s trademarks in multiple domain names unequivocally demonstrates that Respondent had actual knowledge of Complainant’s rights in the at-issue marks when it registered each of its confusingly similar domain names. Knowingly registering a domain name in which another has rights is further evidence of Respondent’s bad faith registration and use under Policy ¶ 4(a)(iii). See Radio & Records, Inc. v. Nat’l Voiceover, FA 665235 (Nat. Arb. Forum May 9, 2006) (Respondent’s registration of the disputed domain name with knowledge of Complainant’s rights is further evidence of bad faith registration and use under Policy ¶ 4(a)(iii).”).
Finally, Respondent is typosquatting. Such behavior is, in and of itself, evidence of bad faith registration and use pursuant to 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cheaptickeys.com> and <cheapticlets.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 5, 2013
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