Orbitz Worldwide, LLC v. Alex Irvin / Themoviebay
Claim Number: FA1306001506292
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Alex Irvin / Themoviebay (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, <dheaptickets.com>, and <qrbitz.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.
Hon. Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 24, 2013; the National Arbitration Forum received payment on June 24, 2013.
On July 3, 2013, Moniker confirmed by e-mail to the National Arbitration Forum that the <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, <dheaptickets.com>, and <qrbitz.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”).
On July 25, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 14, 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@chceaptickets.com, postmaster@cheapatickets.com, postmaster@cheaptickeats.com, postmaster@cheapticketc.com, postmaster@cheaptiskets.com, postmaster@creaptickets.com, postmaster@dheaptickets.com, and postmaster@qrbitz.com. Also on July 25, 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 August 23, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (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 response from Respondent.
Complainant requests that the domain names be transferred from Respondent to 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 websites 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 to attract and mislead consumers for its own profit.
iii. Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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.”).
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 contends that it is the owner of trademark registrations with the USPTO for the CHEAP TICKETS mark (Reg. No. 2,021,749, registered December 10, 1996, filed June 2, 1995); for the CHEAPTICKETS.COM mark (Reg. No. 2,665,841, registered December 24, 2002, filed August 21, 2001); for the ORBITZ mark (e.g., Reg. No. 2,799,051, registered December 23, 2003, filed April 18, 2000); and for the ORBITZ.COM mark (Reg. No. 2,951,983, registered May 17, 2005, filed April 18, 2000). The Panel notes that Respondent appears to reside within the United States. Therefore, the Panel finds that Complainant’s registration of its CHEAP TICKETS, CHEAPTICKETS.COM, ORBITZ, and ORBITZ.COM marks with the USPTO sufficiently proves its rights in the marks pursuant to Policy ¶ 4(a)(i), with such rights dating back to the date on which Complainant filed its trademark application for each respective mark. See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (concluding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); 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”).
Complainant claims that the <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, and <dheaptickets.com> domain names are confusingly similar to Complainant’s CHEAPTICKETS.COM mark because they differ by only a single character from Complainant’s mark. The Panel notes that Respondent adds an additional letter to Complainant’s CHEAPTICKETS.COM mark in its <chceaptickets.com>, <cheapatickets.com>, and <cheaptickeats.com> domain names. The Panel finds that Respondent’s inclusion of an additional letter to Complainant’s CHEAPTICKETS.COM mark is inconsequential to a Policy ¶ 4(a)(i) determination. 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)). The Panel observes that Respondent substitutes one letter in Complainant’s CHEAPTICKETS.COM mark for another in its <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, and <dheaptickets.com> domain names. The Panel determines that Respondent’s substitution of letters in Complainant’s CHEAPTICKETS.COM mark 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”). Consequently, the Panel holds that Respondent’s <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, and <dheaptickets.com> domain names are confusingly similar to Complainant’s CHEAPTICKETS.COM mark pursuant to Policy ¶ 4(a)(i).
Complainant asserts that Respondent’s <qrbitz.com> domain name is confusingly similar to Complainant’s ORBITZ.COM mark because it differs by only a single character from Complainant’s mark. The Panel notes that Respondent substitutes the letter “o” for the letter “q” in Complainant’s ORBITZ.COM mark in its <qrbitz.com> domain name. The Panel determines that Respondent’s substitution of letters in Complainant’s ORBITZ.COM mark does not differentiate the domain name from Complainant’s mark 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”). Accordingly, the Panel finds that Respondent’s <qrbitz.com> domain name is confusingly similar to Complainant’s ORBITZ.COM mark pursuant to Policy ¶ 4(a)(i).
Complainant has proven this element.
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 claims that Respondent has not been commonly known by the disputed domain names. The Panel notes that the WHOIS record for the <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, <dheaptickets.com>, and <qrbitz.com> domain names identifies “Alex Irvin / Themoviebay” as the registrant of the domain names. Complainant contends that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant argues that it has not given Respondent permission to use Complainant’s marks in a domain name. In Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006), the panel concluded that 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 respondent was commonly known by the domain names, and complainant had not authorized respondent to register a domain name containing its registered mark. Therefore, the Panel determines that Respondent is not commonly known by the <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, <dheaptickets.com>, and <qrbitz.com> domain names pursuant to Policy ¶ 4(c)(ii).
Complainant alleges that Respondent is using the disputed 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. The Panel notes that Respondent’s <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, <dheaptickets.com>, and <qrbitz.com> lead to homepages featuring competing links such as “Cheap Airline Tickets,” “Cheapest Air Tickets,” “Orbitz,” and others. Complainant argues that Respondent presumably receives pay-per-click fees from these linked websites. Therefore, the Panel determines that Respondent’s use of the disputed domain names to provide competing links on its websites does not constitute a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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).”).
Complainant has proven this element.
Complainant alleges that Respondent’s advertised pay-per-click links displayed on the resolving websites promote products that compete with Complainant. The Panel notes that Respondent’s <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, <dheaptickets.com>, and <qrbitz.com> domain names provide links to websites that directly compete with Complainant’s legitimate business, including links titled “Cheap Airline Tickets,” “Cheapest Airlines Tickets,” “Air Flight Tickets,” and others. In United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007), the panel concluded that “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).” Thus, the Panel finds that Respondent has registered and is using the <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, <dheaptickets.com>, and <qrbitz.com> domain names in bad faith under Policy ¶ 4(b)(iii) by disrupting Complainant’s business.
Complainant asserts that Respondent has registered and used the disputed domain names to attract and mislead consumers for its own profit. Complainant argues that Respondent has set up a “click through” website for which it likely receives revenue for each misdirected Internet user, clearly demonstrating Respondent’s bad faith. The Panel observes that Respondent’s <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, <dheaptickets.com>, and <qrbitz.com> domain names link to webpages containing competing links titled “Cheap Airline Tickets,” “Cheapest Airlines Tickets,” “Air Flight Tickets,” and others. Prior panels have held that a respondent’s use of a confusingly similar domain name to misdirect Internet users to its own website from which it commercially gains demonstrates bad faith use and registration under Policy ¶ 4(b)(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).”). Consequently, the Panel concludes that Respondent has registered and is using the <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, <dheaptickets.com>, and <qrbitz.com> domain names in bad faith under Policy ¶ 4(b)(iv).
Complainant argues that Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. The Panel notes that Respondent’s <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, <dheaptickets.com>, and <qrbitz.com> domain names feature typographical errors corresponding to Complainant’s marks, which constitutes typosquatting. The Panel finds that Respondent has engaged in typosquatting. Therefore, the Panel determines that Respondent has registered and is using the disputed domain names in bad faith under Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Complainant has proven this element.
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 <chceaptickets.com>, <cheapatickets.com>, <cheaptickeats.com>, <cheapticketc.com>, <cheaptiskets.com>, <creaptickets.com>, <dheaptickets.com>, and <qrbitz.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: August 26, 2013
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