Orbitz Worldwide, LLC v. DNS Admin / Bob Houston
Claim Number: FA1305001498060
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is DNS Admin / Bob Houston (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cheaktickets.com> and <checptickets.com>, registered with Enom, Inc.
The domain names at issue are <cheapthickets.com>, <cheaptichets.com>, <cheaptickects.com>, <cheapticketsd.com>, <cheapticketss.com>, <cheapticktets.com>, <cheaptictets.com>, <cheaptrickets.com>, and <cheaptuckets.com>, registered with Moniker.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 3, 2013; the National Arbitration Forum received payment on May 3, 2013.
On May 6, 2013, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <cheaktickets.com> and <checptickets.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”).
The Forum requested confirmation from Moniker regarding the registration of the <cheapthickets.com>, <cheaptichets.com>, <cheaptickects.com>, <cheapticketsd.com>, <cheapticketss.com>, <cheapticktets.com>, <cheaptictets.com>, <cheaptrickets.com>, and <cheaptuckets.com> domain names three times, to which the Forum did not receive a reply. The Forum thus commenced this proceeding without verification pursuant to a standing order from ICANN.
On May 15, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 4, 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@cheaktickets.com, postmaster@cheapthickets.com, postmaster@cheaptichets.com, postmaster@cheaptickects.com, postmaster@cheapticketsd.com, postmaster@cheapticketss.com, postmaster@cheapticktets.com, postmaster@cheaptictets.com, postmaster@cheaptrickets.com, postmaster@cheaptuckets.com, and postmaster@checptickets.com. Also on May 15, 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.
On May 16, 2013, Moniker confirmed by e-mail to the National Arbitration Forum that the <cheapthickets.com>, <cheaptichets.com>, <cheaptickects.com>, <cheapticketsd.com>, <cheapticketss.com>, <cheapticktets.com>, <cheaptictets.com>, <cheaptrickets.com>, and <cheaptuckets.com> domain names are registered with Moniker and that Respondent is the current registrant of the names. Moniker has verified that Respondent is bound by the Moniker 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”).
Having received no formal response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 14, 2013, Respondent sent the Forum an email saying that “We have just become aware of this case, …” and requested the documents and stated “after we have examined the documents, we will respond in due course.” The Forum sent the documents on June 17, 2013. Also, on June 17, 2013, Respondent acknowledged receipt of the documents and noted that the deadline of 6/4/13 had past and asked “What is the preferred procedure for extending the timeline for this case, so that we may respond in due course?” On June 19, 2013, Respondent sent the Forum an email requesting an extension of the June 4, 2013 response deadline. Respondent said that they had received written notice of the Complaint on June 10, 2013. Respondent denies engaging in typosquatting and bad faith. Respondent says that the domain names were purchased for a research project; that the domain names “are to be used for an upcoming research study related to alternate implementations of Internet Search technology;” and that the research study will not infringe on any trademarks, “and is designed to be a public service rather than for commercial gains.”
Respondent was properly served on May 15, 2013; therefore the request for an extension of time to file a response is denied.
On June 12, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 formal response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
i. Respondent has not been commonly known by the disputed domain names.
ii. Respondent is using the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business.
i. Respondent’s advertised pay-per-click links displayed on the resolving websites promote products that compete with Complainant.
ii. 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.
iii. Respondent has engaged in typosquatting activity.
iv. Respondent has demonstrated a pattern of bad faith registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Orbitz Worldwide, LLC, is a global online travel company that uses technology to enable leisure and business travelers to research, plan, and book a broad range of travel products. Complainant is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CHEAP TICKETS mark (Reg. No. 2,021,749, registered December 10, 1996); for the CHEAPTICKETS.COM mark (Reg. No. 2,665,841, filed August 21, 2001, registered December 24, 2002); and for the CHEAP TICKETS INC. mark (Reg. No. 3,750,940, filed May 8, 2000, registered February 23, 2010).
Respondent, DNS Admin / Bob Houston, is using the disputed domain names to redirect Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent’s advertised pay-per-click links displayed on the resolving websites promote products that compete with Complainant. The earliest date on which Respondent registered a “CHEAPTICKETS” disputed domain name was March 18, 2002.
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 formal 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.”).
The Panel finds that Complainant has sufficiently proved its rights in its CHEAP TICKETS, CHEAPTICKETS.COM, and CHEAP TICKETS INC. marks under Policy ¶ 4(a)(i) through registration of the marks with the USPTO, and that Complainant’s rights in each mark date back to the date on which Complainant filed its trademark application for that mark. See 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”).
Complainant contends that the disputed domain names are confusingly similar to Complainant’s marks because they differ by only a single character from Complainant’s marks. Respondent substitutes one letter for another in Complainant’s CHEAPTICKETS.COM mark for its <cheaktickets.com>, <cheaptichets.com>, <cheaptictets.com>, <cheaptuckets.com>, and <checptickets.com> domain names. Respondent’s substitution of letters does not negate a finding of confusing similarity under Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). Respondent adds an additional letter to Complainant’s CHEAPTICKETS.COM mark in its <cheapthickets.com>, <cheaptickects.com>, <cheapticketsd.com>, <cheapticketss.com>, <cheapticktets.com>, and <cheaptrickets.com> domain names. Attaching additional letters to the aforementioned domain names does not distinguish the domain names from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)). Therefore, the Panel finds that Respondent’s <cheaktickets.com>, <cheapthickets.com>, <cheaptichets.com>, <cheaptickects.com>, <cheapticketsd.com>, <cheapticketss.com>, <cheapticktets.com>, <cheaptictets.com>, <cheaptrickets.com>, <cheaptuckets.com>, and <checptickets.com> domain names are confusingly similar to Complainant’s CHEAPTICKETS.COM mark pursuant to Policy ¶ 4(a)(i).
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).
Complainant contends that Respondent has not been commonly known by the disputed domain names. The WHOIS information identifies “DNS Admin / Bob Houston” as the registrant of the domain names. Complainant claims that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant also contends that it has not given Respondent permission to use Complainant’s mark in a domain name. Respondent does not provide any evidence that it is known by the domain names. The Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). 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).
Complainant argues that Respondent is using the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent’s disputed domain names resolve to websites featuring hyperlinks to Complainant’s competitors, including “Cheapest Airline Tickets,” “Airplane Tickets,” “Cheap International Flight,” and more. Complainant alleges that Respondent presumably receives pay-per-click fees from these linked websites. Therefore, the Panel finds that Respondent is not using the disputed domain names for a Policy ¶ 4(c)(i) bona fide offering of goods and services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use, as Respondent is using the disputed domain names to provide links to Complainant’s competitors. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
Complainant contends that Respondent holds other domain name registrations that appear to be typosquatted, which are outside the realm of the current dispute. Complainant alleges that Respondent’s other domain name registrations serve as further evidence of bad faith intent. However, Complainant does not make an allegation that the domain name registrations are currently the subject of any UDRP proceeding. The Panel therefore finds that there is insufficient evidence to conclude that Respondent has a history of bad faith registration of domain names incorporating registered trademarks.
Complainant claims that Respondent’s advertised pay-per-click links displayed on the resolving websites promote products that compete with Complainant. Complainant argues that these links divert consumers from Complainant’s business. The Panel therefore finds that Respondent is using the <cheaktickets.com>, <cheapthickets.com>, <cheaptichets.com>, <cheaptickects.com>, <cheapticketsd.com>, <cheapticketss.com>, <cheapticktets.com>, <cheaptictets.com>, <cheaptrickets.com>, <cheaptuckets.com>, and <checptickets.com> domain names to disrupt Complainant’s business, proving bad faith use and registration of the domain names pursuant to Policy ¶ 4(b)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”).
Complainant contends that 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. Respondent has set up competing “click-through” websites from which Respondent presumably receives revenue for each misdirected Internet user. Previous panels have held that a respondent’s use of a disputed domain name to host links of complainant’s competitors for its own commercial profit shows bad faith use and registration of the domain name under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent'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.’”). The Panel finds that Respondent has registered and is using the domain names in bad faith under Policy ¶ 4(b)(iv) by attempting to attract users to its own website for commercial gain.
Complainant contends that Respondent typosquatted the domain names at issue by registering misspelled versions of Complainant’s CHEAP TICKETS and CHEAPTICKETS.COM mark. Complainant argues that the misspellings were “intentionally designed to improperly capitalize” on Complainant’s marks. Previous panels have stated that typosquatting serves as evidence of bad faith registration. See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark). The Panel finds that Respondent registered the disputed domain names in bad faith pursuant to Policy ¶ 4(a)(iii), as they are no more than misspellings of Complainant’s mark, which constitutes typosquatting.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cheaktickets.com>, <cheapthickets.com>, <cheaptichets.com>, <cheaptickects.com>, <cheapticketsd.com>, <cheapticketss.com>, <cheapticktets.com>, <cheaptictets.com>, <cheaptrickets.com>, <cheaptuckets.com>, and <checptickets.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: June 26, 2013
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