Travelocity.com LP v. Falsol
Enterprises c/o Desmond Falsol
Claim Number: FA0907001275137
PARTIES
Complainant is Travelocity.com LP (“Complainant”), represented by Brody
Stout, of CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <teavelocity.com>, <trarvelocity.com>,
<trasvelocity.com>, <travelocityy.com>, <travelpcity.com>, <travwlocity.com>, <ttavelocity.com>, and <yravelocity.com>,
registered with Dotregistrar.
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.
Richard Hill as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on July 22, 2009; the
National Arbitration Forum received a hard copy of the Complaint on July 23, 2009.
On July 23, 2009, Dotregistrar confirmed by e-mail to the
National Arbitration Forum that the <teavelocity.com>, <trarvelocity.com>,
<trasvelocity.com>, <travelocityy.com>, <travelpcity.com>, <travwlocity.com>, <ttavelocity.com>, and <yravelocity.com> domain names
are registered with Dotregistrar and that
the Respondent is the current registrant of the names. Dotregistrar
has verified that Respondent is bound by the Dotregistrar
registration agreement and has thereby agreed to resolve domain-name disputes
brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute
Resolution Policy (the “Policy”).
On July 29, 2009, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of August 18, 2009 by which Respondent could
file a Response to the Complaint, was transmitted to Respondent via e-mail,
post and fax, to all entities and persons listed on Respondent’s registration
as technical, administrative and billing contacts, and to postmaster@teavelocity.com, postmaster@trarvelocity.com, postmaster@trasvelocity.com, postmaster@travelocityy.com, postmaster@travelpcity.com, postmaster@travwlocity.com, postmaster@ttavelocity.com, and postmaster@yravelocity.com by e-mail.
Respondent's Response was received
in hard copy only on August 18, 2009.
However, in that no hard copy was received by the Response
deadline, the Response is considered deficient under ICANN Rule 5.
On August 24, 2009, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Richard Hill as Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
The Complainant alleges that it is a leading provider of
consumer-direct travel services for the leisure and business traveler. It markets and distributes travel-related
products and services directly to individuals through Travelocity and its
various brand Web sites and contact centers, and Web sites owned by its
supplier and distribution partners. The
Complainant’s web site at <travelocity.com> attracts an average of 8
million users monthly. It enjoys wide
consumer recognition and acceptance of its brand.
The Complainant states that it owns registered
According to the Complainant, the disputed domain names are confusingly
similar to its trademark because they differ by only a single character from
the Complainant's marks, or because they differ by only the juxtaposition of two
characters when compared to the Complainant's marks. The Complainant cites UDRP cases to support
its position.
The Complainant alleges that the Respondent has no rights or legitimate
interests in the disputed domain names for the following reasons (and it cites
UDRP cases to support its position):
a)
The
Respondent has not been commonly known by the disputed domain names.
b)
The
Respondent is not sponsored by or legitimately affiliated with the Complainant
in any way
c)
The Complainant
has not given Respondent permission to use the Complainant's marks in a domain
name.
d)
The
Respondent is using (some or all of) the disputed domain names to redirect unsuspecting
Internet users to websites featuring generic links to third-party websites,
some of which directly compete with the Complainant's business. Presumably, the Respondent receives
pay-per-click fees from these linked websites. As such, the Respondent is not using the
domain names to provide a bona fide offering of goods or services as
allowed under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use as
allowed under Policy ¶ 4(c)(iii).
e)
The Respondent
is using (some or all of) the disputed domain names to redirect Internet users
to websites operated by the Complainant's competitors. Presumably, the Respondent receives
consideration from those firms for driving traffic to them. As such, the Respondent is not using the
domain names to provide a bona fide offering of goods or services as allowed
under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use as allowed
under Policy ¶ 4(c)(iii). Furthermore,
the Respondent is causing confusion amongst consumers and tarnishing Complainant's
good name in the marketplace.
f)
The
disputed domain names were registered in 2000, well after the Complainant’s
marks.
The Complainant alleges that the Respondent registered and is using the
disputed domain names in bad faith for the following reasons (and it cites UDRP
cases to support its position):
a)
The
Respondent's typo-squatting behavior is, in and of itself, evidence of bad
faith, because he created a likelihood of confusion with the complainant's mark
as to the source, sponsorship, affiliation, or endorsement of the Respondent's
web site or location through his persistent practice of typo-squatting.
b)
The
Respondent has caused the websites reachable by (some or all of) the disputed
domain names to display the Complainant's marks spelled correctly (even though
the domain name is a misspelled version of the same mark). This shows that misspelling was intentionally
designed to improperly capitalize on the Complainant's famous marks.
c)
The
Respondent has caused the websites reachable by (some or all of) the disputed domain
names to display content and/or keywords directly related to the Complainant’s
business. This shows that misspelling
was intentionally designed to improperly capitalize on the Complainant's famous
marks.
B. Respondent
The Respondent alleges that the Complainant’s representative in this
proceeding is itself a typo-squatting company.
They claim to "recover" the domain to the Complainant but in
return force the Complainant into an agreement allowing the representative to
be the typo-squatter instead of the Respondent for a period of many years after
recovering the domain.
According to the Respondent, the Complainant’s
representative would benefit as a typo-squatter from the domain names through
the Complainant’s affiliate program exactly like a so called typo-squatter
would do. If the Panel views
typo-squatting as not allowable, then they should view the Complainant’s
representative as the grand monopoly of typo-squatting and reject this claim.
The Respondent goes on to provide an example of
such alleged behaviour by the Complainant’s representative, and to allege that
the representative has been barred from operating in the state of
The Respondent does not present any arguments
or evidence with respect to the three elements of the Policy.
The Respondent concludes that the disputed
domain names should not be transferred to the Complainant, because to do so
would in fact result in their being transferred to the typo-squatting
representative of the Complainant.
FINDINGS
The Complainant is a well-known company
providing online travel services.
It owns marks for the string TRAVELOCITY.
The disputed domain names differ from the
Complainant’s mark by only a single character or by only the juxtaposition of
two characters.
The Respondent is using the disputed domain
names to point to web sites offering products and services that directly
compete with those offered by the Complainant.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
Before proceeding to discuss the substance of the case, the Panel will
first deal with two procedural matters.
Late Response
The hard copy version of the Respondent’s Response was received
late. Thus, the Forum does not consider
the Response to be in compliance with ICANN Rule 5. In accordance with paragraph 10 of the Rules,
the Panel, at its discretion, may choose whether to accept and consider this
Response. The Panel chooses to accept
the Response. See J.W. Spear &
Sons PLC v. Fun League Mgmt., FA 180628 (Nat. Arb. Forum Oct. 17,
2003) (finding that where respondent submitted a timely response
electronically, but failed to submit a hard copy of the response on time, “[t]he Panel is of the view that given the technical nature
of the breach and the need to resolve the real dispute between the parties that
this submission should be allowed and given due weight”).
Allegations against the Complainant’s
Representative
The Respondent argues that the disputed domain names should not be
transferred to the Complainant, because this would be tantamount to
transferring them to the Complainant’s representative who, according to the
Respondent, is itself a typo-squatter.
The Respondent does not indicate which element of the Policy would
justify such action by the Panel.
Although the Policy does not explicitly deal with the matter of
representation, it has long been accepted that parties may choose a
representative to assist them in the proceedings, it being understood that, if
the Complainant prevails, the disputed domain names would be transferred to the
Complainant, not to the Complainant’s representative. The Complainant may then do what it wishes
with the disputed domain names, including transferring them to its
representative.
Thus the Respondent’s arguments are ill-founded. If the Complainant were to transfer the
disputed domain names to its Representative, that could not possible constitute
typo-squatting, because the Complainant (as the owner of the mark) is perfectly
free to transfer any of its domain names to any other party for any reason that
it sees fit.
Thus the Panel rejects the Respondent’s arguments and request regarding
the Complainant’s representative.
Having dealt with these issues, the Panel will proceed to consider the
three elements of the Policy.
Paragraph 4(a) of the Policy requires that the 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 the Respondent
is identical or confusingly similar to a trademark or service mark in which the
Complainant has rights;
(2) the 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.
The Complainant contends that the disputed domain names are confusingly similar to its
TRAVELOCITY mark because all of the disputed domain names merely contain
misspellings of its mark and add the generic top-level domain (“gTLD”)
“.com.” The Panel agrees and finds that
the disputed domain names are confusingly similar to the Complainant’s
TRAVELOCITY mark under Policy ¶ 4(a)(i).
See Intelius, Inc. v. Hyn, FA 703175
(Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to
be confusingly similar to the complainant’s INTELIUS mark because the domain
name differed from the mark by one letter and was visually similar); see also 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).”); see
also Jerry Damson, Inc. v.
Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The
mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to
adequately distinguish the Domain Name from the mark.”).
The Complainant argues (and provides evidence to support its arguments) that the Respondent is using the disputed domain names to point to websites that display hyperlinks to third-party websites, some of which directly compete with Complainant’s travel services business. The Complainant further argues that the Respondent receives click-through fees for these hyperlinks. From the evidence provided, the Panel finds that the Respondent’s use of the disputed domain names does not represent 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). See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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)).
The Complainant
asserts that the Respondent is engaging in typo-squatting, and the Respondent
does not effectively contest that.
Indeed, the evidence clearly shows that the Respondent is engaging in
typo-squatting. This is further evidence
that the Respondent lacks rights and legitimate interests in the disputed
domain names under Policy ¶ 4(a)(ii). See Microsoft
Corp. v. Domain Registration
Further, for the
reasons set forth below, the Panel finds that the Respondent is engaging in
various actions which demonstrate that he has no rights or legitimate interests
in the disputed domain names.
The Complainant contends (and provides
evidence to support its position) that the websites that resolve from the
disputed domain names contain hyperlinks that resolve to third-party party
websites, some of which directly compete with Complainant. On the basis of the evidence provided, the
Panel finds that the Respondent’s conduct constitutes bad faith registration
and use pursuant to Policy ¶ 4(b)(iii). See Tesco
Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13,
2007) (concluding that the use of a confusingly similar domain name to attract
Internet users to a directory website containing commercial links to the
websites of a complainant’s competitors represents bad faith registration and
use under Policy ¶ 4(b)(iii)); see
also Am. Airlines, Inc. v.
Further, the Complainant asserts that the
Respondent is receiving click-through fees from the hyperlinks featured on the
websites resolving from the disputed domain names, and thus the Respondent is
using the disputed domain names to attract Internet users to the resolving
websites for commercial gain by creating a likelihood of confusion between the Complainant
and the disputed domain names. On the
basis of the evidence presented, the Panel agrees with the Complainant. The Respondent’s actions constitute bad faith
registration and use under Policy ¶ 4(b)(iv).
See
As noted above, it is clear that the
Respondent is engaging in typo-squatting.
This is further evidence of bad faith registration and use 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 typo-squatting, which is evidence of bad faith
registration and use under Policy ¶ 4(a)(iii)); see also Bank of Am. Corp. v.
Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003)
(“Respondent’s registration and use of the disputed domain name demonstrates a
practice commonly referred to as ‘typo-squatting.’ This practice diverts Internet users who
misspell Complainant’s mark to a website apparently owned by Respondent for
Respondent’s commercial gain.
‘Typo-squatting’ has been recognized as evidencing bad faith
registration and use under Policy ¶ 4(b)(iv).”).
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 <teavelocity.com>, <trarvelocity.com>,
<trasvelocity.com>, <travelocityy.com>, <travelpcity.com>, <travwlocity.com>, <ttavelocity.com>, and <yravelocity.com> domain
names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 11, 2009
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