Orbitz Worldwide, LLC v. MGA LIMITED / mgaenterpriseslimited
Claim Number: FA1308001515036
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is MGA LIMITED / mgaenterpriseslimited (“Respondent”), Zimbabwe.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cheaptiekets.com>, registered with Godaddy.Com, LLC.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 15, 2013; the National Arbitration Forum received payment on August 15, 2013.
On August 19, 2013, Godaddy.Com, LLC confirmed by e-mail to the National Arbitration Forum that the <cheaptiekets.com> domain name is registered with Godaddy.Com, LLC and that Respondent is the current registrant of the name. Godaddy.Com, LLC has verified that Respondent is bound by the Godaddy.Com, LLC 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 5, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 25, 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@cheaptiekets.com. Also on September 5, 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 September 30, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <cheaptiekets.com> domain name is confusingly similar to Complainant’s CHEAPTICKETS.COM mark.
2. Respondent does not have any rights or legitimate interests in the <cheaptiekets.com> domain name.
3. Respondent registered and uses the <cheaptiekets.com> domain name in bad faith.
B. Respondent failed to submit a timely Response in this proceeding.
Complainant owns rights in the CHEAPTICKETS.COM mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,665,841 registered December 24, 2002).
Respondent registered the disputed domain name on December 2, 2005, and uses it to resolve to a website that promotes travel products and services that directly compete with Complainant,
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.”).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 alleges that Respondent is not commonly known by its <cheaptiekets.com> domain name, because the WHOIS information identifies the registrant of the disputed domain name as “MGA LIMITED / mgaenterpriseslimited,” and Complainant did not authorize Respondent to use its CHEAPTICKETS.COM mark in a domain name. Previous panels have held that a respondent is not commonly known by a domain name where the complainant has not authorized the respondent to use its mark in a domain name and nothing in the record, including the WHOIS information, suggests that the respondent is commonly known by the disputed domain name. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name). Accordingly, the Panel finds that Respondent is not commonly known as <cheaptiekets.com> pursuant to Policy ¶ 4(c)(ii).
Complainant alleges that Respondent’s use of the <cheaptiekets.com> domain name is not protected as 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), because the domain name resolves to a website that hosts links to various third-party websites, most of which directly compete with Complainant in the travel industry. The Panel notes that the disputed domain name resolves to a website that promotes links to third parties, including links entitled “Cheap Airline Tickets,” “Cheap Flights, 70% Off,” and “Lowest Airline Tickets.” Previous panels have held that a respondent’s use of a domain name is not protected where the resolving website displays links to products and services that directly compete with those offered under the complainant’s mark. See, e.g., Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”). Therefore, the Panel finds that Respondent’s use of the disputed domain name is not protected under Policy ¶¶ 4(c)(i) or 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent’s registration and use of the <cheaptiekets.com> domain name constitutes bad faith disruption under Policy ¶ 4(b)(iii), because the resolving website promotes links to travel products and services that directly compete with those offered by Complainant, and thus diverts potential customers away from Complainant to third parties. Previous panels have found bad faith under Policy ¶ 4(b)(iii) where the disputed domain name resolves to a website that hosts links to the complainant’s competitors, because the promotion of these links tends to disrupt the complainant’s business. See, e.g., H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”). Therefore, the Panel finds that the disputed domain name diverts potential customers away from Complainant, which demonstrates Respondent’s bad faith registration and use of the <cheaptiekets.com> domain name under Policy ¶ 4(b)(iii).
Complainant alleges that Respondent has demonstrated bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iv), because the disputed domain name creates a likelihood of confusion with Complainant’s CHEAPTICKETS.COM mark, and Respondent is commercially benefitting from the disputed domain name in the form of click-through fees. Previous panels have found that a respondent’s use of a confusingly similar domain name to promote links to the complainant’s competitors supports an inference that the respondent receives click-through fees, and thus demonstrates the respondent’s bad faith under Policy ¶ 4(b)(iv). 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 disputed domain name pursuant to Policy ¶ 4(b)(iv).
Respondent’s registration and use of the <cheaptiekets.com> domain name also constitutes typosquatting, itself evidence of bad faith under Policy ¶ 4(a)(iii). In Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003), a previous panel found that the respondent registered and used the disputed domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location’” through its practice of typosquatting. The Panel similarly finds that Respondent has registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that 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 <cheaptiekets.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 4, 2013
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