Orbitz Worldwide, LLC v. Domain NameZ
Claim Number: FA1401001541412
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Domain NameZ (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <0rbitz.com>, registered with Moniker Online Services LLC.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 29, 2014; the National Arbitration Forum received payment on January 29, 2014.
On February 4, 2014, Moniker Online Services LLC confirmed by e-mail to the National Arbitration Forum that the <0rbitz.com> domain name is registered with Moniker Online Services LLC and that Respondent is the current registrant of the name. Moniker Online Services LLC has verified that Respondent is bound by the Moniker Online Services 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 February 5, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 25, 2014 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@0rbitz.com. Also on February 5, 2014, 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 March 3, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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
a) Complainant has rights in the ORBITZ mark, which it uses in connection with travel agency services, namely, making reservations and bookings for transportation, providing information concerning travel, travel news, and travel-related topics via electronic communications networks. Complainant is the owner of the United States Patent and Trademark Office (“USPTO”) registration for the ORBITZ mark (e.g., Reg. No. 2,858,685 filed Apr. 18, 2000; registered June 29, 2004).
b) The <0rbitz.com> domain name is confusingly similar to the ORBITZ mark. Respondent merely misspells the ORBITZ mark by a single letter and adds the generic top-level domain (“gTLD”) “.com” to create the disputed domain name.
c) Respondent is not commonly known by the <0rbitz.com> domain name, and has no trademark or intellectual property rights in the name. The WHOIS record suggests that Respondent is not known by the name “0rbitz.” Further, Respondent has not been licensed, authorized, or permitted to use the ORBITZ mark.
d) Respondent is using the <0rbitz.com> domain name to direct unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business offerings.
e) Respondent has listed the <0rbitz.com> domain name for sale.
f) Respondent’s use of the disputed domain name to advertise competitive pay-per-click links is disruptive to Complainant’s business. This use diverts potential customers away from Complainant and to third-party website.
g) Respondent’s bad faith is demonstrated because Respondent uses the <0rbitz.com> domain name in connection with generating revenue as a click-through website. By using Complainant’s mark and providing links to competing goods and services, Respondent attempts to take advantage of the ORBITZ mark in order to achieve a wrongful competitive advantage and commercially gain.
h) The disputed domain name is a classic example of typosquatting, thus evidencing bad faith. The replacement of the “o” with a “0” in the ORBITZ mark is designed to take advantage of Internet users’ typographical errors.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the ORBITZ mark. Respondent’s domain name is confusingly similar to Complainant’s ORBITZ mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <0rbitz.com> domain name, and that Respondent registered and uses the domain name 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."
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 asserts that it has rights in the ORBITZ mark, which it uses in connection with travel agency services, namely, making reservations and bookings for transportation, providing information concerning travel, travel news, and travel-related topics via electronic communications networks. Complainant has provided evidence that it is the owner of the USPTO registration for the ORBITZ mark (Reg. No. 2,858,685 filed Apr. 18, 2000; registered Jun. 29, 2004). Registration of a mark is evidence of having established rights in that mark. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); 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”). Therefore, the Panel finds that Complainant has trademark rights in the ORBITZ mark dating back to April 18, 2000 pursuant to Policy ¶ 4(a)(i).
Complainant contends that the <0rbitz.com> domain name is confusingly similar to the ORBITZ mark. Complainant notes that Respondent merely misspells the ORBITZ mark by a single letter and adds the gTLD “.com” to create the disputed domain name. Such changes have been found to be insubstantial by panels in previous disputes. 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 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). Therefore, the Panel finds that the <0rbitz.com> domain name is confusingly similar to the ORBITZ mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name. Complainant argues that Respondent is not commonly known by the <0rbitz.com> domain name, and has no trademark or intellectual property rights in the name. According to Complainant, the WHOIS record shows that Respondent is not known by the domain name. The WHOIS record for the <0rbitz.com> domain name lists “Domain NameZ” as the domain name’s registrant. Further, Complainant claims that Respondent has not been licensed, authorized, or permitted to use the ORBITZ mark. Therefore, the Panel finds that Respondent is not commonly known by the <0rbitz.com> domain name under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant next alleges that Respondent is using the <0rbitz.com> domain name to direct unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business offerings. In Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007), the panel held 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 Panel similarly finds that Respondent’s use of the <0rbitz.com> domain name to promote competitive links is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that the <0rbitz.com> domain name was registered and is being used in bad faith. Complainant supports this claim by pointing out that Respondent has listed the <0rbitz.com> domain name for sale. In Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003), the panel stated, “Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).” The Panel agrees, given this precedent, that Respondent’s willingness to sell the disputed domain name is evidence of bad faith under Policy ¶ 4(b)(i).
Complainant next alleges that Respondent’s use of the disputed domain name to advertise competitive pay-per-click links is disruptive to Complainant’s business. Complainant claims that this use diverts potential customers away from Complainant and to third-party website. The Panel reasonably infers that Respondent’s registration and use of a confusingly similar domain name to display competing links has an impact on Complainant’s projected consumer base and thus is disruptive to Complainant’s business. Such disruption is evidence of bad faith under 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)).
Complainant contends that Respondent’s bad faith is further demonstrated because Respondent uses the <0rbitz.com> domain name in connection with generating revenue as a click-through website. Complainant argues that, by using Complainant’s mark and providing links to competing goods and services, Respondent attempts to take advantage of the ORBITZ mark in order to confuse Internet users into clicking on the hyperlink advertisements on the domain name’s website. The Panel in AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000), found bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes. The Panel similarly finds that Respondent’s registration and use of the <0rbitz.com> domain name is evidence of Policy ¶ 4(b)(iv) bad faith.
Complainant lastly asserts that the disputed domain name is a classic example of typosquatting, thus evidencing bad faith. According to Complainant, the replacement of the “o” with a “0” in the ORBITZ mark is designed to take advantage of Internet users’ typographical errors. Typosquatting, as an intentional taking advantage of Internet users’ mistakes, may give rise to an inference of bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)). The Panel therefore concludes that Respondent’s bad faith can be inferred through the registration of a domain name that replaces the letter “o” with the similar number “0.”
The Panel finds 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 <0rbitz.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 6, 2014
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page