Priceline.com,
Inc. v.
Claim Number: FA0911001296088
Complainant is Priceline.com,
Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <priceliine.com>, <pricelilne.com>, and <pricleline.com>, registered with Answerable.com (I) Pvt. Ltd.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 24, 2009; the National Arbitration Forum received a hard copy of the Complaint on November 25, 2009.
On November 30, 2009, Answerable.com (I) Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <priceliine.com>, <pricelilne.com>, and <pricleline.com> domain names are registered with Answerable.com (I) Pvt. Ltd. and that Respondent is the current registrant of the names. Answerable.com (I) Pvt. Ltd. has verified that Respondent is bound by the Answerable.com (I) Pvt. Ltd. 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 December 10, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 30, 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@priceliine.com, postmaster@pricelilne.com, and postmaster@pricleline.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 7, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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." 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 makes the following assertions:
Complainant operates online travel agency services under its PRICELINE trademark.
Complainant has registered its PRICELINE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,272,659, issued August 24, 1999).
Respondent registered each of the disputed domain names between April of 2001 and April of 2002.
Respondent is not commonly known
by any of the disputed domain names.
Respondent is not authorized to use Complainant’s PRICELINE mark in any manner.
Each of the disputed domain names resolves to a website displaying links to third-party travel services competing with the business of Complainant.
Respondent’s <priceliine.com>, <pricelilne.com>, and <pricleline.com> domain names are confusingly similar to Complainant’s PRICELINE mark.
Respondent does not have any rights to or legitimate interests in the <priceliine.com>, <pricelilne.com>, and <pricleline.com> domain names.
Respondent’s use of the disputed domain names constitutes disruption of Complainant’s business within the meaning of the Policy.
Respondent profits from this disruptive use of the contested domain names through the receipt of click-through fees.
Respondent registered and uses the domain names <priceliine.com>, <pricelilne.com>, and <pricleline.com> in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain names; and
(3) the domain names were registered and are being used by Respondent in bad faith.
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."
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 a 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.”
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in its PRICELINE trademark
for the purposes of Policy ¶ 4(a)(i) through its
evidence of a federal trademark registration.
See Miller Brewing
Complainant contends the <priceliine.com>, <pricelilne.com>, and <pricleline.com> domain names are confusingly similar to Complainant’s PRICELINE mark. Each of these domain names contains Complainant’s PRICELINE mark with the addition of an extraneous letter and the addition of the generic top-level domain (“gTLD”) “.com.” The addition of a letter and a gTLD to Complainant’s mark does not distinguish the disputed domain names from the mark. Thus we conclude that the disputed domain names are confusingly similar to Complainant’s mark 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).
See also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words in a mark to form a domain name, a respondent does not create a distinct mark, but renders the resulting domain name confusingly similar to a complainant’s mark); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of a domain name such as “.net” or “.com” does not affect the domain for the purpose of determining whether it is identical or confusingly similar within the meaning of the Policy).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have rights to or
legitimate interests in the disputed domain names. Once Complainant presents a prima facie case supporting these
allegations, the burden shifts to Respondent to establish that it does have
rights to or legitimate interests in the disputed domain names pursuant to
Policy ¶ 4(a)(ii).
See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21,
2000) (holding that once a complainant asserts that a respondent has no rights to
or legitimate interests with respect to a domain, the burden shifts to that
respondent to provide “concrete evidence that it has rights to or legitimate
interests in the domain name at issue
Complainant has presented a sufficient prima facie case to support its allegations, and Respondent has failed
to submit a response in these proceedings.
Therefore, we may presume that Respondent does not have rights to or
legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). See Desotec N.V. v. Jacobi Carbons AB,
D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a
presumption that a complainant’s allegations are true unless clearly
contradicted by the evidence). However, we
will inspect the record before us to determine whether there is in it any basis
for concluding that Respondent has rights to or legitimate interests in the
disputed domain names under the standards contained in Policy ¶ 4(c).
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent is not commonly known by any of the disputed domain names. Moreover, the pertinent WHOIS information for each of the disputed domain names indicates only that the registrant of the domain is “Ravi Singh c/o Whois Privacy Protection Services,” which bears no resemblance to any of the disputed domain names. Complainant also alleges, without contradiction from Respondent, that Respondent is not authorized to use Complainant’s PRICELINE mark in any manner. From all this we conclude that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that a respondent does not have rights in a domain name where that respondent is not known by the mark in issue); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that, without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).
We also observe that there is no dispute as to Complainant’s assertion that the disputed domain names each resolve to a website that display links to third-party websites offering travel agency services that compete with Complainant’s own services. Respondent’s use of the disputed domain names as alleged is 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). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that a respondent’s diversionary use of a complainant’s marks to send Internet users to a website which displayed links to that complainant’s competitors was not a bona fide offering of goods or services); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (concluding that the use of a contested domain name to operate a portal with hyperlinks to various third-party websites, some of which may be in competition with a complainant’s business, 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)).
The Panel thus finds that Policy ¶ 4(a)(ii)
has been satisfied.
Complainant contends that Respondent has engaged in bad faith registration and use of the disputed domain names because they resolve to websites containing links to third-party websites that compete with the business of Complainant. Complainant also contends Respondent’s use of the disputed domain names constitutes disruption of Complainant’s business within the meaning of the Policy. Respondent does not dispute these allegations. We therefore conclude that Respondent has engaged in bad faith registration and use of the disputed domain names 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 contested domain name to attract Internet users to a directory website containing links to the websites of a complainant’s commercial competitors represents bad faith registration and use of the domain under Policy ¶ 4(b)(iii)); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that a respondent engaged in bad faith registration and use of disputed domain names pursuant to Policy ¶ 4(b)(iii) by using them to operate a commercial search engine with links to the products of a complainant and of that complainant’s competitors).
Complainant further contends that Respondent is profiting
from this disruptive use of the through the receipt of click-through fees. Again, Respondent does not contest this
assertion. We therefore conclude that
Respondent is attempting to profit from Internet users’ confusion as to
Complainant’s possible affiliation with the disputed domain names, which is
evidence of bad faith registration and use of the domains pursuant to Policy ¶
4(b)(iv). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb.
Forum July 24, 2006) (finding that a respondent engaged in bad faith
registration and use of domain names pursuant to Policy ¶ 4(b)(iv) by using
them to operate a commercial search engine with links to the products of a
complainant and those of that complainant’s competitors); see also 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).
For these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the domain names <priceliine.com>, <pricelilne.com>, and <pricleline.com> be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: January 21, 2010
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