Orbitz Worldwide, LLC v. Domcharme Group C/O Jean Lucas ( ) / chepatickets.com Hanna El Hinn () / cheaptivckets.com Hanna El Hinn () / cheeaptickets.com Hanna El Hinn () / chepatickets.com Hanna El Hinn ()
Claim Number: FA1304001495346
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Domcharme Group C/O Jean Lucas ( ) / chepatickets.com Hanna El Hinn () / cheaptivckets.com Hanna El Hinn () / cheeaptickets.com Hanna El Hinn () / chepatickets.com Hanna El Hinn () (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cheapptickets.com>, <cheaptivkets.com>, <cheeaptickets.com>, <chepatickets.com>, <orbibtz.com>, <orbitzt.com>, and <orbuitz.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 18, 2013; the National Arbitration Forum received payment on April 18, 2013.
On April 19, 2013, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <cheapptickets.com>, <cheaptivkets.com>, <cheeaptickets.com>, <chepatickets.com>, <orbibtz.com>, <orbitzt.com>, and <orbuitz.com> domain names are registered with eNom, Inc. and that Respondent is the current registrant of the names. 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 April 30, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 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@cheapptickets.com, postmaster@cheaptivkets.com, postmaster@cheeaptickets.com, postmaster@chepatickets.com, postmaster@orbibtz.com, postmaster@orbitzt.com, and postmaster@orbuitz.com. Also on April 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 May 28, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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
1. Complainant contends that all of the disputed domain names have the same administrative contact, technical contact and email information. Complainant notes that all of the domain names are registered with the same registrar, all of the disputed domain names have the same DNS servers, and all of the disputed domain names have the same IP address. Complainant asserts that the <cheaptickets.com> domain name and the <orbibtz.com>, <orbitzt.com>, <orbuitz.com> domain names use the same traffic forwarding mechanisms, <http://www.e-o-k.com>, and once Internet users are forwarded to this page their clicks are monetized using the same method. Complainant concludes that the above evidence demonstrates that Respondent is the single entity controlling the disputed domain names and receiving the resulting profits from them.
2. Complainant claims that it has rights in the CHEAP TICKETS mark, used in connection with travel services. Complainant provides the Panel with evidence of its ownership of a registration for the CHEAP TICKETS mark (Reg. No. 2,021,749 registered Dec. 10, 1996) with the United States Patent and Trademark Office (“USPTO”).
3. Complainant also claims that it has rights in the ORBITZ mark, similarly used in connection with travel services. Complainant provides the Panel with evidence of Complainant’s USPTO registration for the ORBITZ mark (Reg. No. 2,858,685 filed April 18, 2000; registered June 29, 2004).
4. Complainant alleges that the disputed domain names are confusingly similar to its marks. The disputed domain names are similar in appearance, sound, and commercial impression to Complainant’s marks, and the addition of a generic top-level domain (“gTLD”) does not distinguish the disputed domain names from Complainant’s marks. Further, Complainant contends the disputed domain names differ from Complainant’s marks by a single character, wholly incorporate Complainant’s mark, or are a common misspelling or miss-typing of Complainant’s marks.
5. Respondent does not own any rights or have any legitimate interests in the disputed domain names.
6. Respondent has not been commonly known by the disputed domain names. Complainant points to the WHOIS information for the disputed domain names to show that Respondent is not known as the entity the trademark is associated with. Further, Complainant has not authorized Respondent to register the disputed domain names that incorporate Complainant’s mark.
7. Respondent is not legitimately affiliated with or sponsored by Complainant.
8. Complainant alleges that Respondent’s failure to file a Response to this action creates a presumption of a lack of rights or legitimate interests in the disputed domain names.
9. Respondent registered and is using the disputed domain names in bad faith.
10. Respondent is a serial cybersquatter engaged in an ongoing pattern of this type of behavior, specifically similar acts of typosquatting.
11. The links displayed on the resolving websites promote products that compete with Complainant, thereby disrupting Complainant’s business.
12. Respondent is using the disputed domain names to generate “click-through” revenue by using the Complainant’s marks and providing links to the services and products to achieve a wrongful competitive advantage and commercial gain.
13. The Respondent has registered and used the disputed domain names in bad faith by using the disputed domain names to attract and mislead consumers for its own profit.
14. Complainant alleges that Respondent is typosquatting.
15. Respondent also displays keywords related to Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the CHEAP TICKETS and ORBITZ marks. Respondent’s <cheapptickets.com>, <cheaptivkets.com>, <cheeaptickets.com>, <chepatickets.com>, <orbibtz.com>, <orbitzt.com>, and <orbuitz.com> domain names are confusingly similar to Complainant’s CHEAP TICKETS and ORBITZ marks. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <cheapptickets.com>, <cheaptivkets.com>, <cheeaptickets.com>, <chepatickets.com>, <orbibtz.com>, <orbitzt.com>, and <orbuitz.com> domain names, and that Respondent registered and uses the domain names 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.”).
Preliminary Issue: Multiple Respondents
In the instant proceeding, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that all of the disputed domain names have the same administrative contact, technical contact and email information. Complainant argues that all of the domain names are registered with the same registrar, all of the disputed domain names have the same DNS servers, and all of the disputed domain names have the same IP address. Complainant asserts that the <cheaptickets.com> domain name and the <orbibtz.com>, <orbitzt.com>, <orbuitz.com> domain names use the same traffic forwarding mechanisms, http://www.e-o-k.com, and once Internet users are forwarded to this page their clicks are monetized using the same method. Based on the foregoing the Panel concludes that the above evidence demonstrates that Respondent is the single entity controlling the disputed domain names within the meaning of the Rules.
Complainant argues that it has rights in the CHEAP TICKETS and ORBITZ marks, both used to offer services in the travel industry. Complainant contends, and supports, that it owns a USPTO registration for the CHEAP TICKETS mark (Reg. No. 2,021,749 registered Dec. 10, 1996) as well as a USPTO registration for the ORBITZ mark (Reg. No. 2,858,685 filed April 18, 2000; registered June 29, 2004). The registration of a mark with a federal trademark authority is sufficient evidence of rights so as to satisfy Policy ¶ 4(a)(i). See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations). Furthermore, the registration of a mark is sufficient for a finding of rights regardless of the location of the parties. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Accordingly, the Panel finds that Complainant has rights in the CHEAP TICKETS and ORBITZ marks pursuant to Policy ¶ 4(a)(i).
Complainant next alleges that the <cheapptickets.com>, <cheaptivkets.com>, <cheeaptickets.com>, and <chepatickets.com> domain names are confusingly similar to Complainant’s CHEAP TICKETS mark. Complainant points out that the <cheapptickets.com>, <cheaptivkets.com>, <cheeaptickets.com>, and <chepatickets.com> domain names differ from Complainant’s CHEAP TICKETS mark by a single character, wholly incorporate Complainant’s mark, or are a common misspelling of Complainant’s marks. The misspelling of words in a domain name does not create a distinction from a trademark. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 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). Further, the addition of a gTLD does not create a distinction between the disputed domain names and the mark within them. 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). Therefore, the Panel finds that Respondent’s <cheapptickets.com>, <cheaptivkets.com>, <cheeaptickets.com>, and <chepatickets.com> domain names are confusingly similar to Complainant’s CHEAP TICKETS mark under Policy ¶ 4(a)(i).
Complainant argues that the <orbibtz.com>, <orbitzt.com>, and <orbuitz.com> domain names are confusingly similar to Complainant’s ORBITZ mark. Complainant points out that the disputed domain names differ from Complainant’s ORBITZ mark by the addition of a single letter. The minor misspelling of a mark by a single character does not differentiate the disputed domain names from the mark within them. 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). Furthermore, the addition of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. 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). Therefore, the Panel finds that Respondent’s <orbibtz.com>, <orbitzt.com>, and <orbuitz.com> domain names are confusingly similar to Complainant’s ORBITZ mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant contends that Respondent does not have any rights or legitimate interests in the disputed domain names. Complainant argues that Respondent has never been known by the ORBITZ or CHEAP TICKETS marks. The WHOIS record for the disputed domain names related to the ORBITZ mark list “Domcharme Group Jean Lucas” as the domain name registrant, and the WHOIS record for the disputed domain names related to the CHEAPTICKETS mark list “Hanna El Hinn” as the domain name registrant. The panel in Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003), held that the WHOIS record is often determinative of whether is respondent is known by a domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii).
Complainant contends that Respondent is generating “click-through” revenue with the disputed domain names by misleading and diverting consumers through the use of Complainant’s marks. Complainant notes that the disputed domain names display links to services and products that compete with those of Complainant. This type of conduct does not constitute a bona fide offering of goods or legitimate noncommercial of fair use. See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was 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)).. Therefore, the Panel finds that Respondent’s use of the disputed domain names is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent is a serial cybersquatter engaged in an ongoing pattern of bad faith registration and use. Complainant points to Respondent’s record of UDRP cases as evidence of this claim. E.g., Brookstone Company, Inc. v. Domcharme Group / Jean Lucas, FA1106001393874 (Nat. Arb. Forum July 12, 2011); Staples, Inc. and Staples the Officer Superstore, LLC v. Domcharme Group / Jean Lucas, FA110300138008 (Nat. Arb. Forum April 19, 2011). A history of prior UDRP proceedings where panels ordered the transfer of disputed domain names to the complainant is indicative of a pattern of bad faith registration and use. See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants). Therefore, the Panel finds that Respondent has developed a pattern of bad faith registration and use under Policy ¶ 4(a)(iii) and thus bad faith may be inferred with regard to Respondent’s registration and use of the disputed domain names.
Next, Complainant contends that Respondent is disrupting Complainant’s business by diverting potential customers away from Complainant’s business to competing third-party websites. Such conduct constitutes bad faith registration and use. See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)). Therefore, the Panel finds that Respondent has registered and used the disputed domain names in bad faith under Policy ¶ 4(a)(iii), resulting in a disruption to Complainant’s business.
Complainant argues that Respondent is attracting and misleading Internet users for its own profit through the use of the disputed domain names. Complainant asserts that Respondent is receiving “click-through” revenue to obtain commercial gain through the use of Complainant’s well-known marks by displaying competing links on the disputed domain names’ resolving websites. This conduct constitutes bad faith. See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes). Therefore, the Panel finds that Respondent has registered and used the disputed domain names in bad faith under Policy ¶ 4(a)(iii) in an attempt to mislead and attract Internet users for commercial gain.
Complainant next contends that Respondent is engaged in typosquatting. Complainant asserts that the disputed domain names differ from either the ORBITZ or CHEAP TICKETS mark merely by a single letter. The Panel finds that such minute changes were made to take advantage of typographical errors by Internet users, and thus that the domain names are typosquatted versions of Complainant’s marks. Thus, the Panel finds that Respondent registered and uses the disputed domain names in bad faith 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)).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cheapptickets.com>, <cheaptivkets.com>, <cheeaptickets.com>, <chepatickets.com>, <orbibtz.com>, <orbitzt.com>, and <orbuitz.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: June 4, 2013
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