national arbitration forum

 

DECISION

 

Orbitz Worldwide, LLC v. Tangwangzhongtuo Technology Beijing Co.,Ltd

Claim Number: FA1305001498131

PARTIES

Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Tangwangzhongtuo Technology Beijing Co.,Ltd (“Respondent”), China.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <cgheaptickets.com>, <cheapticjkets.com>, <cheaptickewts.com>, <cheaptickjets.com>, <cheaptickrets.com>, <cheaptickwets.com>, <cheapticlkets.com>, <cheaptiuckets.com>, <cheapticvkets.com>, <cheaptivckets.com>, <cheaptoickets.com>, <cheaptuickets.com>, <cheasptickets.com>, <chewaptickets.com>, <chgeaptickets.com>, <chweaptickets.com>, <cvheaptickets.com>, <cxheaptickets.com>, <ofrbitz.com>, <olrbitz.com>, <orbigtz.com>, and <orfbitz.com>, registered with Guangzhou Ming Yang Information Technology Co., Ltd.

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on May 3, 2013; the National Arbitration Forum received payment on May 3, 2013. The Complainant was submitted in both English and Chinese.

 

On May 10, 2013, Guangzhou Ming Yang Information Technology Co., Ltd confirmed by e-mail to the National Arbitration Forum that the <cgheaptickets.com>, <cheapticjkets.com>, <cheaptickewts.com>, <cheaptickjets.com>, <cheaptickrets.com>, <cheaptickwets.com>, <cheapticlkets.com>, <cheaptiuckets.com>, <cheapticvkets.com>, <cheaptivckets.com>, <cheaptoickets.com>, <cheaptuickets.com>, <cheasptickets.com>, <chewaptickets.com>, <chgeaptickets.com>, <chweaptickets.com>, <cvheaptickets.com>, <cxheaptickets.com>, <ofrbitz.com>, <olrbitz.com>, <orbigtz.com>, and <orfbitz.com> domain names are registered with Guangzhou Ming Yang Information Technology Co., Ltd and that Respondent is the current registrant of the names.  Guangzhou Ming Yang Information Technology Co., Ltd has verified that Respondent is bound by the Guangzhou Ming Yang Information Technology Co., Ltd 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 May 20, 2013, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of June 10, 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@cgheaptickets.com, postmaster@cheapticjkets.com, postmaster@cheaptickewts.com, postmaster@cheaptickjets.com, postmaster@cheaptickrets.com, postmaster@cheaptickwets.com, postmaster@cheapticlkets.com, postmaster@cheaptiuckets.com, postmaster@cheapticvkets.com, postmaster@cheaptivckets.com, postmaster@cheaptoickets.com, postmaster@cheaptuickets.com, postmaster@cheasptickets.com, postmaster@chewaptickets.com, postmaster@chgeaptickets.com, postmaster@chweaptickets.com, postmaster@cvheaptickets.com, postmaster@cxheaptickets.com, postmaster@ofrbitz.com, postmaster@olrbitz.com, postmaster@orbigtz.com, and postmaster@orfbitz.com.  Also on May 20, 2013, the Chinese language 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 June 14, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

  1. Complainant
    1. Complainant, 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.
    2. Complainant was formed in 1999 with the purpose of participating in the growing online travel industry, and its official website at the <orbitz.com> domain name was launched in 2001. Since that time, Complainant has become a leader in the travel industry market, and is widely used and recognized by consumers.
    3. Complainant founded its Cheap Tickets business in 1986 and grew into an airline ticket consolidator selling discounted tickets. Cheap Tickets offers the ability to search for and reserve travel products and services, including air travel, hotels, car rentals, and cruises from global suppliers.
    4. Complainant has spent a substantial sum on advertising and promotion of its CHEAP TICKETS and ORBITZ marks.
    5. Complainant is the owner of numerous federal 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, registered December 24, 2002); for the CHEAP TICKETS INC. mark (Reg. No. 3,750,940, registered February 23, 2010); for the ORBITZ mark (e.g., Reg. No. 2,858,685, registered June 29, 2004); and for the ORBTIZ.COM mark (Reg. No. 2,951,983, registered July 5, 2005).
    6. The disputed domain names are confusingly similar to Complainant’s marks because each domain differs by only a single character from either the ORBITZ or the CHEAPTICKETS.COM marks.
    7. Respondent has no rights or legitimate interests in respect of the disputed domain names.

                                          i.    Respondent has not been commonly known by the disputed domain names.

                                         ii.    Respondent is using all of 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.

    1. The domain names should be considered as having been registered and being used in bad faith.

                                          i.    Respondent’s advertised pay-per-click links displayed on the resolving websites promotes 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’s typosquatting behavior is, in and of itself, evidence of bad faith.

    1. The earliest date on which Respondent registered a CHEAP TICKETS disputed domain name was November 18, 2010; The earliest date on which Respondent registered an ORBITZ disputed domain name was March 19, 2011.

B.    Respondent has not submitted a Response to this case.

 

FINDINGS

1.    Respondent’s <cgheaptickets.com>, <cheapticjkets.com>, <cheaptickewts.com>, <cheaptickjets.com>, <cheaptickrets.com>, <cheaptickwets.com>, <cheapticlkets.com>, <cheaptiuckets.com>, <cheapticvkets.com>, <cheaptivckets.com>, <cheaptoickets.com>, <cheaptuickets.com>, <cheasptickets.com>, <chewaptickets.com>, <chgeaptickets.com>, <chweaptickets.com>, <cvheaptickets.com>, <cxheaptickets.com>, <ofrbitz.com>, <olrbitz.com>, <orbigtz.com>, and <orfbitz.com> domain names are confusingly similar to Complainant’s CHEAP TICKETS and ORBITZ marks.

2.    Respondent does not have any rights or legitimate interests in the <cgheaptickets.com>, <cheapticjkets.com>, <cheaptickewts.com>, <cheaptickjets.com>, <cheaptickrets.com>, <cheaptickwets.com>, <cheapticlkets.com>, <cheaptiuckets.com>, <cheapticvkets.com>, <cheaptivckets.com>, <cheaptoickets.com>, <cheaptuickets.com>, <cheasptickets.com>, <chewaptickets.com>, <chgeaptickets.com>, <chweaptickets.com>, <cvheaptickets.com>, <cxheaptickets.com>, <ofrbitz.com>, <olrbitz.com>, <orbigtz.com>, and <orfbitz.com> domain names.

3.    Respondent registered or used the <cgheaptickets.com>, <cheapticjkets.com>, <cheaptickewts.com>, <cheaptickjets.com>, <cheaptickrets.com>, <cheaptickwets.com>, <cheapticlkets.com>, <cheaptiuckets.com>, <cheapticvkets.com>, <cheaptivckets.com>, <cheaptoickets.com>, <cheaptuickets.com>, <cheasptickets.com>, <chewaptickets.com>, <chgeaptickets.com>, <chweaptickets.com>, <cvheaptickets.com>, <cxheaptickets.com>, <ofrbitz.com>, <olrbitz.com>, <orbigtz.com>, and <orfbitz.com> domain names in bad faith.

 

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

 

Complainant argues that it 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. Complainant asserts that it is the owner of numerous federal trademark registrations with the 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, registered December 24, 2002); for the CHEAP TICKETS INC. mark (Reg. No. 3,750,940, registered February 23, 2010); for the ORBITZ mark (e.g., Reg. No. 2,858,685, registered June 29, 2004); and for the ORBTIZ.COM mark (Reg. No. 2,951,983, registered July 5, 2005). See Annex E. The Panel finds that although Respondent appears to reside and operate within China, the Panel determines that Complainant does not need to register its mark in the country that Respondent operates in under Policy ¶ 4(a)(i), so long as it registers the mark in some jurisdiction. 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 and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). The Panel in Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) concluded that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO. Therefore, the Panel finds that Complainant sufficiently demonstrated its rights in the CHEAP TICKETS, CHEAPTICKETS.COM, CHEAP TICKETS INC., ORBITZ, and ORBITZ.COM marks pursuant to Policy ¶ 4(a)(i) through its registrations with the USPTO.

 

Complainant argues that the disputed domain names are confusingly similar to Complainant’s marks because they differ by only a single character from Complainant’s marks. The Panel notes that Respondent adds a single additional letter to each of the CHEAPTICKETS.COM mark in the <cgheaptickets.com>, <cheapticjkets.com>, <cheaptickewts.com>, <cheaptickjets.com>, <cheaptickrets.com>, <cheaptickwets.com>, <cheapticlkets.com>, <cheaptiuckets.com>, <cheapticvkets.com>, <cheaptivckets.com>, <cheaptoickets.com>, <cheaptuickets.com>, <cheasptickets.com>, <chewaptickets.com>, <chgeaptickets.com>, <chweaptickets.com>, <cvheaptickets.com>, and <cxheaptickets.com> domain names. The Panel determines that Respondent’s addition of a single letter to Complainant’s CHEAPTICKETS.COM mark in each of the aforementioned domain names does not negate a finding of confusing similarity under Policy ¶ 4(a)(i). See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the 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).”). Therefore, the Panel finds that Respondent’s <cgheaptickets.com>, <cheapticjkets.com>, <cheaptickewts.com>, <cheaptickjets.com>, <cheaptickrets.com>, <cheaptickwets.com>, <cheapticlkets.com>, <cheaptiuckets.com>, <cheapticvkets.com>, <cheaptivckets.com>, <cheaptoickets.com>, <cheaptuickets.com>, <cheasptickets.com>, <chewaptickets.com>, <chgeaptickets.com>, <chweaptickets.com>, <cvheaptickets.com>, and <cxheaptickets.com> domain names are confusingly similar to Complainant’s CHEAPTICKETS.COM mark under Policy ¶ 4(a)(i).

 

The Panel notes that Respondent adds a single additional letter to Complainant’s ORBITZ.COM mark in each of Respondent’s <ofrbitz.com>, <olrbitz.com>, <orbigtz.com>, and <orfbitz.com> domain names. The Panel determines that Respondent’s addition of a single letter to Complainant’s ORBITZ mark does not distinguish the aforementioned ORBITZ-centric disputed domain names from Complainant’s mark under 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)). Thus, the Panel holds that Respondent’s <ofrbitz.com>, <olrbitz.com>, <orbigtz.com>, and <orfbitz.com> domain names are confusingly similar to Complainant’s ORBITZ.COM mark pursuant to Policy ¶ 4(a)(i).

 

 

Rights or Legitimate Interests

 

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 asserts that Respondent has not been commonly known by the disputed domain names. The Panel notes that the WHOIS information lists “Tangwangzhongtuo Technology Beijing Co., Ltd” as the registrant of the disputed domain names. See Exhibit I. Complainant argues that Respondent is not sponsored by or legitimately affiliated with Complainant in any way, and further, that it has not given Respondent permission to use any of Complainant’s CHEAPTICKETS.COM or ORBITZ.COM marks in the domain name or in any other manner. In Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006), the panel concluded that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark. Accordingly, the Panel finds that Respondent is not commonly known by the <cgheaptickets.com>, <cheapticjkets.com>, <cheaptickewts.com>, <cheaptickjets.com>, <cheaptickrets.com>, <cheaptickwets.com>, <cheapticlkets.com>, <cheaptiuckets.com>, <cheapticvkets.com>, <cheaptivckets.com>, <cheaptoickets.com>, <cheaptuickets.com>, <cheasptickets.com>, <chewaptickets.com>, <chgeaptickets.com>, <chweaptickets.com>, <cvheaptickets.com>, <cxheaptickets.com>, <ofrbitz.com>, <olrbitz.com>, <orbigtz.com>, and <orfbitz.com> domain names pursuant to Policy ¶ 4(c)(ii).

 

Complainant claims that Respondent is using all of 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. The Panel notes that Respondent’s domain names resolve to hyperlink directories, including hyperlinks to competitors of Complainant such as “Cheap Airline Tickets,” “Hyatt – Official Site,” “Cheap First Class Tickets,” and others. See Exhibit H. Complainant asserts that Respondent presumably receives pay-per-click fees from these linked websites. Prior panels have found that a respondent’s use of a domain name to display links to Complainant’s competitors does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of the domain name. 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).”). As such, the Panel finds that Respondent’s use of the disputed domain names is not a Policy ¶ 4(c)(i) bona fide offering of goods and services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.

 

Registration and Use in Bad Faith

 

Complainant asserts that Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant. The Panel notes that Respondent’s disputed domain names link to websites in direct competition with Complainant’s business, such as the competing links “Cheap Airline Tickets,” “Priceline Cheap Flights,” and “Delta Air Lines.” See Exhibit H. Complainant contends that these links divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business. In H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008), the panel determined that the disputed domain names resolved to websites that listed links to competitors of Complainant, evidencing that Respondent intended to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii). Accordingly, the Panel holds that Respondent’s use of the disputed domain name disrupts Complainant’s business under Policy ¶ 4(b)(iii).

 

Complainant argues that Respondent has registered and used the disputed domain names in bad faith by using them to attract and mislead consumers for its own profit. The Panel notes that Respondent uses the disputed domain names to host links competing with Complainant’s business. See Exhibit H. Complainant alleges that 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 use and registration of the domain names. The Panel finds that Respondent’s use of the <cgheaptickets.com>, <cheapticjkets.com>, <cheaptickewts.com>, <cheaptickjets.com>, <cheaptickrets.com>, <cheaptickwets.com>, <cheapticlkets.com>, <cheaptiuckets.com>, <cheapticvkets.com>, <cheaptivckets.com>, <cheaptoickets.com>, <cheaptuickets.com>, <cheasptickets.com>, <chewaptickets.com>, <chgeaptickets.com>, <chweaptickets.com>, <cvheaptickets.com>, <cxheaptickets.com>, <ofrbitz.com>, <olrbitz.com>, <orbigtz.com>, and <orfbitz.com> domain names to provide links to Complainant’s competitors and presumably receive click-through fees evidences bad faith use and registration of the disputed domain names 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.’”).

 

Complainant contends that Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. The Panel notes that Respondent’s disputed domain names are mere misspellings of Complainant’s CHEAPTICKETS.COM and ORBITZ.COM marks. The Panel also notes that Respondent’s misspellings were meant to take advantage of Internet users’ accidental misspellings of Complainant’s marks. Therefore, the Panel finds that Respondent is typosquatting, and thus demonstrates bad faith use and registration of the disputed domain names 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)).

 

DECISION

 

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED

 

Accordingly, it is Ordered that the <cgheaptickets.com>, <cheapticjkets.com>, <cheaptickewts.com>, <cheaptickjets.com>, <cheaptickrets.com>, <cheaptickwets.com>, <cheapticlkets.com>, <cheaptiuckets.com>, <cheapticvkets.com>, <cheaptivckets.com>, <cheaptoickets.com>, <cheaptuickets.com>, <cheasptickets.com>, <chewaptickets.com>, <chgeaptickets.com>, <chweaptickets.com>, <cvheaptickets.com>,

<cxheaptickets.com>, <ofrbitz.com>, <olrbitz.com>, <orbigtz.com>, and <orfbitz.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

Dated:  June 27, 2013

 

 

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