Orbitz Worldwide, LLC v. Direct Privacy LTD / Direct Privacy
Claim Number: FA1405001561079
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Direct Privacy LTD / Direct Privacy (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com>, registered with Dnc Holdings, Inc.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 23, 2014; the National Arbitration Forum received payment on May 23, 2014.
On May 27, 2014, Dnc Holdings, Inc. confirmed by e-mail to the National Arbitration Forum that the <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names are registered with Dnc Holdings, Inc. and that Respondent is the current registrant of the names. Dnc Holdings, Inc. has verified that Respondent is bound by the Dnc Holdings, Inc. 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 May 27, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 16, 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@lorbitz.com, postmaster@lrbitz.com, postmaster@o4bitz.com, postmaster@orbi6z.com, postmaster@orbitzl.com, postmaster@orbktz.com, postmaster@worbitz.com, postmaster@wworbitz.com. Also on May 27, 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 June 25, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson 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
a. Policy ¶ 4(a)(i)
i. Complainant, Orbitz Worldwide, LLC, is a leading global online travel company that uses innovative technology to enable leisure and business travelers to research, plan, and book a broad range of travel products.
ii. Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the ORBITZ mark (e.g., Reg. No. 2,799,051, filed January 19, 2001, registered December 23, 2003).
iii. Respondent’s <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names are confusingly similar to Complainant’s ORBTIZ mark.
b. Policy ¶ 4(a)(ii)
i. Respondent has no rights or legitimate interests in respect of the disputed domain names.
ii. Respondent has not been commonly known by the disputed domain names.
iii. Respondent is using the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business.
c. Policy ¶ 4(a)(iii)
i. The domain names should be considered as having been registered and being used in bad faith.
ii. Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant.
iii. Respondent is using the disputed domain names to attract and mislead consumers for its own profit.
iv. Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith.
d. The earliest date on which Respondent registered the disputed domain names was June 13, 2002.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Orbitz Worldwide, LLC, of Chicago IL, USA. Complainant is the owner of domestic registrations for the mark ORBITZ and related marks. Complainant has continuously used the mark since at least as early as 2001 in connection with its provision of global online travel goods and services.
Respondent is Direct Privacy LTD / Direct Privacy, Grand Cayman, Cayman Islands. Respondent’s registrar’s address is listed as Metairie, LA, USA. Respondent registered the disputed domains on or about June 13, 2002.
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 is a leading global online travel company that uses innovative technology to enable leisure and business travelers to research, plan, and book a broad range of travel products. Complainant argues that it owns trademark registrations with the USPTO for the ORBITZ mark (e.g., Reg. No. 2,799,051, filed January 19, 2001, registered December 23, 2003). The Panel notes that Respondent resides in the Cayman Islands. The Panel finds that Policy ¶ 4(a)(i) does not require that Complainant register its mark in the Cayman Islands, so long as it can demonstrate rights in the mark in some jurisdiction. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). The Panel finds that Complainant’s filing and registration of the ORBITZ mark with the USPTO sufficiently shows that it has rights in the mark under Policy ¶ 4(a)(i). See 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”); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)).
Complainant argues that Respondent’s <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names are confusingly similar to Complainant’s ORBTIZ mark because they differ by only a single character from Complainant’s mark. The Panel notes that Respondent either adds a letter, substitutes one letter for another, or adds a number to Complainant’s ORBITZ mark in each of the disputed domain names. The Panel finds that Respondent’s misspelling of a mark in a domain name does nothing to differentiate the domain names from the mark under Policy ¶ 4(a)(i). See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)); 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”); see also Am. Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24, 2000) (finding that the respondent’s domain name <go2AOL.com> was confusingly similar to the complainant’s AOL mark). Lastly, the Panel observes that Respondent adds the generic top-level domain (“gTLD”) “.com” to each of the disputed domain names.
The Panel further notes that Respondent’s inclusion of a gTLD is inconsequential to a Policy ¶ 4(a)(i) analysis. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”). The Panel finds that Respondent’s <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names are confusingly similar to Complainant’s ORBTIZ mark pursuant to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that 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). The Complainant has met this burden.
Complainant asserts that Respondent has not been commonly known by the <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names. Complainant urges that Respondent is not sponsored by or legitimately affiliated with Complainant in any way and Complainant has not given Respondent permission or authorization to use Complainant’s mark in a domain name. The Panel notes that Respondent is identified as “Direct Privacy LTD / Direct Privacy” in the WHOIS record. In Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006), the panel concluded that respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that respondent was commonly known by the domain names, and complainant had not authorized respondent to register a domain name containing its registered mark. The Panel here finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Complainant states Respondent is using the <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. The Panel notes that Respondent’s disputed domain names resolve to hyperlink directories hosting competing links such as “Cheap Airfare Flights,” “Orbitz Flights,” “Airlines Flights,” and others. Past UDRP panels have held that a respondent’s use of a domain name to offer competing links is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. 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)). The Panel here finds that Respondent is not using the <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names for a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use where it is using the disputed domain names to provide competing hyperlinks.
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant urges that Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant. The Panel notes that Respondent is using the <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names to host a competing link directory, featuring links titled “Cheapest Air Flight,” “Air Fare Tickets,” “Air Travel Cheap,” and more. The Panel finds that Respondent’s use of the disputed domain names to provide competing links that disrupt Complainant’s business constitutes using the disputed domain names in bad faith under Policy ¶ 4(b)(iii). See 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).”).
Complainant claims that Respondent is using the <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names to attract and mislead consumers for its own profit. The Panel again notes that Respondent is using the disputed domain names to divert Internet users to a webpage hosting links titled “Cheapest Airlines Tickets,” “Air Cheap Tickets,” “Discount Travel Tickets,” and others. Complainant asserts that Respondent is using the disputed domain names in order to collect click-through revenue from each misdirected user that clicks on one of the linked websites. The Panel finds that Respondent has registered and is using the <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names in bad faith under Policy ¶ 4(b)(iv). See 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).”).
Complainant alleges that Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. The Panel again notes that Respondent changes the ORBITZ mark in the disputed domain name by adding a letter, adding a number, or replacing one letter for another, creating a typographical error. In Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003), the panel held that “Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).” The Panel here finds that Respondent has engaged in typosquatting by registereing the <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names, evidencing bad faith use and registration pursuant to Policy ¶ 4(a)(iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <lorbitz.com>, <lrbitz.com>, <o4bitz.com>, <orbi6z.com>, <orbitzl.com>, <orbktz.com>, <worbitz.com>, and <wworbitz.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: July 9, 2014
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