Orbitz Worldwide, LLC v. HEMANG INFRASRUCTURE PRIVATE LIMITED / HEMANG INFRASRUCTURE PRIVATE LIMITED
Claim Number: FA1308001513714
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is HEMANG INFRASRUCTURE PRIVATE LIMITED / HEMANG INFRASRUCTURE PRIVATE LIMITED (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cheapctickets.com>, <cheapyickets.com>, <chesptickets.com>, <obritz.com>, and <robitz.com>, registered with Tirupati Domains and Hosting Private Limited, Pdr Ltd. d/b/a Publicdomainregistry.Com.
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 August 7, 2013; the National Arbitration Forum received payment on August 8, 2013.
On September 25, 2013, Hosting Private Limited, Pdr Ltd. d/b/a Publicdomainregistry.Com confirmed by e-mail to the National Arbitration Forum that the <cheapctickets.com> <chesptickets.com> are registered with Hosting Private Limited, Pdr Ltd. d/b/a Publicdomainregistry.Com and that Respondent is the current registrant of the names. Hosting Private Limited, Pdr Ltd. d/b/a Publicdomainregistry.Com has verified that Respondent is bound by the Hosting Private Limited, Pdr Ltd. d/b/a Publicdomainregistry.Com 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 August 9, 2013, Tirupati Domains confirmed by e-mail to the National Arbitration Forum that the <robitz.com>, <cheapyickets.com>, and <obritz.com>, domain names are registered with Tirupati Domains and that Respondent is the current registrant of the names. Tirupati Domains has verified that Respondent is bound by the Tirupati Domains 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 September 25, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 15, 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@cheapctickets.com, postmaster@cheapyickets.com, postmaster@chesptickets.com, postmaster@obritz.com, postmaster@robitz.com. Also on September 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 October 21, 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 response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Orbitz Worldwide, LLC, is a leading online global travel company that enables leisure and business travelers to research, plan, and book a range of travel products. Complainant has registered various marks with the United States Patent and Trademark Office (“USPTO”), including the CHEAP TICKETS mark (e.g., Reg. No. 2,021,749 registered December 10, 1996), and the ORBITZ mark (Reg. No. 2,858,685 filed April 18, 2000, registered June 29, 2004).
Respondent, HEMANG INFRASRUCTURE PRIVATE LIMITED / HEMANG INFRASRUCTURE PRIVATE LIMITED, registered the following disputed domain names on the following dates:
The disputed domain names resolve to pay-per-click websites containing links to third parties.
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 has rights in the CHEAP TICKETS and ORBITZ marks through registration with the USPTO. A complainant’s registration of a mark with the USPTO sufficiently establishes the complainant’s rights in the mark under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)). A complainant need not register its mark in the respondent’s country of residence in order to sufficiently establish its rights in the mark pursuant to the Policy. See, e.g., 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 registration date of Complainant’s ORBITZ mark is June 29, 2004, after the disputed <obritz.com> and <robitz.com> domain names were registered in 2001. However, a complainant’s rights in a mark date back to the filing date of the trademark application. 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 filed its application for the registration of the ORBITZ trademark on April 18, 2000, predating Respondent’s 2001 registration of the <obritz.com> and <robitz.com> domain names.
Complainant argues that the <chesptickets.com>, <cheapytickets.com>, and <cheapctickets.com> domain names are confusingly similar to Complainant’s CHEAP TICKETS mark, because each of these domain name merely misspells the mark by a single letter: replacing the letter “a” with the letter “s;” the addition of the letter “y;” and the addition of the letter “c.” Each of these disputed domain names eliminates the space found in the CHEAP TICKETS mark and adds the generic top-level domain (“gTLD”) “.com.” The elimination of a space and addition of a gTLD does not sufficiently distinguish the domain name from a complainant’s mark under Policy ¶ 4(a)(i). See 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)). Similarly, a domain name that differs from a complainant’s mark by a single letter tends to be confusingly similar to the mark. 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); see also 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”); 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).”). The <chesptickets.com> domain name merely replaces one letter in the Complainant’s CHEAP TICKETS mark with a different letter. The <cheapytickets.com>, and <cheapctickets.com> domain names merely add a single letter to the CHEAP TICKETS mark. Accordingly, the Panel finds that these three disputed domain names are confusingly similar to Complainant’s CHEAP TICKETS mark under Policy ¶ 4(a)(i).
Complainant also argues the <obritz.com> and <robitz.com> domain names are confusingly similar to Complainant’s ORBITZ mark, because each of these domain name merely juxtaposes two letters in the mark: the letters “b” and “r,” and the letters “r” and “o.” Both of these disputed domain names also add the gTLD “.com.” A domain name’s addition of a gTLD is not relevant for the purposes of a confusingly similar analysis under the Policy. 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). Similarly, a disputed domain name that merely transposes two letters found in a complainant’s mark is not distinct from the mark under the Policy. See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”). Accordingly, the Panel finds that the <obritz.com> and <robitz.com> domain names are confusingly similar to Complainant’s ORBITZ mark under 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 argues that Respondent is not commonly known as <cheapctickets.com>, <cheapyickets.com>, <chesptickets.com>, <obritz.com>, or <robitz.com>, because the WHOIS information identifies the registrant of the names as “HEMANG INFRASRUCTURE PRIVATE LIMITED” and nothing else on the record suggests Respondent is commonly known by the disputed domain names. A respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii) where nothing in the record, including the WHOIS information, suggests that the respondent is commonly known by the disputed domain name. 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). Here, the WHOIS information shows that Respondent is commonly known as “HEMANG INFRASRUCTURE PRIVATE LIMITED” and not by the disputed domain names. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii).
Complainant next alleges that Respondent’s use of the disputed domain names is not protected as a bona fide offering of goods and services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or 4(c)(iii) because the disputed domain names resolve to pay-per-click websites containing links to third parties’ websites. The websites resolving from each of the disputed domain names contains at least one hyperlink referring to online travel booking, including links entitled “Plane Tickets,” “Low Cost Flight Tickets,” “Compare Airline Tickets,” “Travel Package,” and “Cheap Airline Tickets.” Thus, Respondent is using the disputed domain names to promote links to online travel services that directly compete with those offered by Complainant under its CHEAP TICKETS and ORBITZ marks. The Panel finds that Respondent’s use of the <cheapctickets.com>, <cheapyickets.com>, <chesptickets.com>, <obritz.com>, and <robitz.com> domain names is not a bona fide offering of goods and services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or 4(c)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (respondent had not shown a bona fide offering of goods or services or a legitimate noncommercial or fair use when the website resolving from the disputed domain name displayed links to travel products and services, which directly competed with Complainant’s business).
Complainant alleges that Respondent has demonstrated bad faith registration and use of the disputed domain names pursuant to Policy ¶ 4(b)(ii), because numerous adverse UDRP decisions exist against Respondent, and in the instant proceedings alone, Respondent registered five domain names that infringe on Complainant’s marks. See Blue Media Inc. v. Hemang Infrasructure Private Ltd., FA 1305977 (Nat. Arb. Forum Mar. 22, 2010); Enterprise Holdings, Inc. v. Hemang Infrasructure Private Ltd., FA 1341222 (Nat. Arb Forum Oct.12, 2010); McAfee, Inc. v. HEMANG INFRASRUCTURE PRIVATE LTD., FA 1439615 (Nat. Arb. Forum May 25, 2012). A respondent who has been subject to numerous UDRP proceedings ordering domain name transfer demonstrates a pattern of bad faith registration under Policy ¶ 4(b)(ii). 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). A respondent registering multiple infringing domain names shows bad faith registration and use. See Albertson's, Inc. v. Bennett, FA 117013 (Nat. Arb. Forum Sept. 5, 2002)(bad faith registration and use pursuant to Policy ¶ 4(b)(ii) when the respondent registered both the <albertsonscoupons.com> and <albertsons-coupons.com> domain names since both of these domain names infringe on Complainant’s ALBERTSON’S COUPON mark). Accordingly, the Panel finds that Respondent has demonstrated a pattern of bad faith domain name registration, which shows Respondent’s bad faith registration and use of the disputed domain names under Policy ¶ 4(b)(ii).
Complainant next argues that Respondent’s registration and use of the <cheapctickets.com>, <cheapyickets.com>, <chesptickets.com>, <obritz.com>, and <robitz.com> domain names indicates bad faith under Policy ¶ 4(b)(iii), because the names divert Internet users away from Complainant’s websites to Respondent’s websites, which in turn display links to Complainant’s competitors in the online travel booking industry. Accordingly, the Panel finds that Respondent has shown bad faith registration and use of the disputed domain names under Policy ¶ 4(b)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008)(disputed domain name resolving to a parking website which provides click through revenue to Respondent and displays links to travel-related products and services in direct competition with Complainant is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
Complainant argues that the <cheapctickets.com>, <cheapyickets.com>, <chesptickets.com>, <obritz.com>, and <robitz.com> domain names mislead Internet users seeking services under Complainant’s CHEAP TICKETS and ORBITZ so that Respondent can profit in the form of pay-per-click fees, thus showing bad faith registration and use under Policy ¶ 4(b)(iv). Each of the disputed domain names resolves to a website that contains a series of generic hyperlinks, some of which compete directly with Complainant in the online travel booking industry. The Panel presumes that Respondent is acquiring click-through fees in exchange for its promotion of these links. See, e.g., 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).”). Accordingly, the Panel finds that Respondent has demonstrated bad faith registration and use of the <cheapctickets.com>, <cheapyickets.com>, <chesptickets.com>, <obritz.com>, and <robitz.com> domain names pursuant to Policy ¶ 4(b)(iv).
Complainant argues that the <cheapctickets.com>, <cheapyickets.com> and <chesptickets.com> domain names vary from Complainant’s CHEAP TICKETS mark by only one character: the additional letter “c;” the replacement of the letter “t” with the letter “y,” and the replacement of the letter “a” with the letter “s.” Complainant argues that by registering these domain names, Respondent has engaged in typosquatting, which in itself evidences Respondent’s bad faith under Policy ¶ 4(a)(iii). By registering the <cheapctickets.com>, <cheapyickets.com> and <chesptickets.com> domain names, which vary from Complainant’s CHEAP TICKETS mark by only one character, Respondent has deliberately created a likelihood that the websites resolving from these domain names will be confused for websites that are sponsored by or affiliated with Complainant. The Panel concludes that Respondent’s behavior constitutes typosquatting. See, e.g., K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on typographical error of Internet users seeking complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evidencing typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant similarly alleges that Respondent’s registration of the <robitz.com> and <obritz.com> domain names constitutes typosquatting that demonstrates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). Each of these domain names differs from Complainant’s ORBITZ mark by two transposed characters: the letters “o” and “r” and the letters “r” and “b.” By engaging in typosquatting Respondent has registered and used the <robitz.com> and <obritz.com> domain names in bad faith under Policy ¶ 4(a)(iii).
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 <cheapctickets.com>, <cheapyickets.com>, <chesptickets.com>, <obritz.com>, and <robitz.com> be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 2, 2013
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