CheapCaribbean.com, Inc. v. Moniker Privacy Services
Claim Number: FA1411001589962
Complainant is CheapCaribbean.com, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Moniker Privacy Services (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cheepcaribbean.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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 13, 2014; the National Arbitration Forum received payment on November 13, 2014.
On November 14, 2014, Moniker Online Services LLC confirmed by e-mail to the National Arbitration Forum that the <cheepcaribbean.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 November 21, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 11, 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@cheepcaribbean.com. Also on November 21, 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 December 17, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant owns the CHEAPCARIBBEAN.COM mark through registration with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,316,639, registered Oct. 23, 2007, filed February 7, 2007). Complainant uses the CHEAPCARIBBEAN.COM mark in connection with online travel vacation packages and reservations. Complainant began operations in December 2000, and has served more than one million customers. Complainant registered its primary website on December 11, 2000, and press releases show Complainant has garnered significant goodwill for its efforts. The <cheepcaribbean.com> domain name is confusingly similar to the CHEAPCARIBBEAN.COM mark.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not affiliated with Complainant, and is not commonly known by the <cheepcaribbean.com> name. Respondent is not using the disputed domain name to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a website offering links to third-party websites, some of which compete with Complainant’s travel agency operations.
Respondent’s bad faith is demonstrated by the use of the domain name to promote links in competition with Complainant’s own travel offerings. Further, Respondent has violated Policy ¶ 4(b)(iv) as the domain name is used in connection with a click-through website promoting competing links. Lastly, the <cheepcaribbean.com> domain name is a typosquatted version of the CHEAPCARIBBEAN.COM mark, and typosquatting is indicative of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is CheapCaribbean.com, Inc. of Doylestown, PA, USA. Complainant is the owner of a domestic registration for the mark CHEAPCARIBBEAN.COM which it has used continuously since at least as early as 2000 in connection with its provision of online travel agency services. Complainant is also the owner of the domain name <cheapcaribbean.com> which it registered in 2000 when it began business operations.
Respondent is Moniker Privacy Services of Fort Lauderdale, FL, USA. Respondent’s registrar’s address is listed as the same. Respondent registered the disputed domain name on or about November 3, 2003.
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 uses the CHEAPCARIBBEAN.COM mark in connection with online travel vacation packages and reservations. Complainant claims to own the CHEAPCARIBBEAN.COM mark through registration with the USPTO (Reg. No. 3,316,639, registered Oct. 23, 2007, filed February 7, 2007). The Panel finds that Complainant’s valid registration with the USPTO demonstrates Complainant’s rights in the CHEAPCARIBBEAN.COM mark, and that such rights extend back to the February 7, 2007 filing date. 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”).
Complainant asserts that its rights in the mark extend beyond this USPTO filing date, and actually date back to 2000. Complainant contends that it began operations in December 2000, and registered its primary website on December 11, 2000. Complainant also points to press releases showing Complainant has garnered recognition and significant goodwill for its efforts, as demonstrated by serving more than one million customers. The Panel finds that the CHEAPCARIBBEAN.COM mark acquired secondary meaning, and therefore common law trademark rights predating its federal registration, as demonstrated by its continuous use and commercial success, pursuant to Policy ¶ 4(a)(i). See Congregation Shuvah Yisrael, Inc. v. Neckonoff, FA 1043126 (Nat. Arb. Forum Sept. 7, 2007) (finding that a complainant’s mark had established secondary meaning where the complainant had previously held the registration for a domain name identical to the mark); see also Surecom Corp. NV v. Rossi, FA 1352722 (Nat. Arb. Forum Nov. 29, 2010) (holding that complainant had acquired secondary meaning in the mark, thereby establishing common law rights in the mark for purposes of Policy ¶ 4(a)(i), as a result of complainant’s continuous use of the CAM4 mark since 1999).
Complainant next argues the <cheepcaribbean.com> domain name is confusingly similar to the CHEAPCARIBBEAN.COM mark. The Panel notes that the domain name differs from the mark by the substitution of the letter “a” in “cheap” for an “e.” Prior panels have found that the substitution of a single letter in a mark does not dispel the confusing similarity inherent by the presence of the otherwise incorporated mark. See Orbitz Worldwide, LLC v. MGA LIMITED / mgaenterpriseslimited, FA 151503 (Nat. Arb. Forum Oct. 4, 2013), the panel wrote, “Respondent’s <cheaptiekets.com> domain name is confusingly similar to Complainant’s CHEAPTICKETS.COM mark, because the domain name merely replaces the letter ‘c’ in the word “tickets” with the letter ‘e.’” The Panel here finds that the <cheepcaribbean.com> domain name is confusingly similar to the CHEAPCARIBBEAN.COM mark pursuant to Policy ¶ 4(a)(i), as the domain name merely altered a single letter in the mark and the mark retained its phonetic identity.
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), 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 claims that Respondent has no rights or legitimate interests in the disputed domain name. In so arguing, Complainant states that Respondent is not affiliated with Complainant, and that Respondent is not commonly known by the <cheepcaribbean.com> name. The Panel notes that the WHOIS information merely lists a privacy service as registrant. In light of Respondent’s failure to provide any evidence to the contrary, the Panel finds there is no basis to find Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Next, Complainant argues that Respondent is not using the disputed domain name to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, Complainant alleges the disputed domain name resolves to a website offering links to third-party websites, some of which compete with Complainant’s travel agency operations. The Panel notes that the subject website features links to “CheapOair® Official Site,” “Walt Disney World®,” and “All-Inclusive Specials.” The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii). See 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”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As 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 asserts that Respondent’s bad faith is demonstrated by the use of the domain name to promote links in competition with Complainant’s own travel offerings. The Panel again notes that the disputed domain name resolves to feature such links including “CheapOair® Official Site,” “Walt Disney World®,” and “All-Inclusive Specials.” As such links compete with Complainant’s own vacation and travel services, the Panel finds evidence of Policy ¶ 4(b)(iii) bad faith disruption. See David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
Further, Complainant argues that Respondent has violated Policy ¶ 4(b)(iv) as the domain name is used in connection with a click-through website promoting competing links. As discussed above, the subject landing page promotes travel and vacation related links. Prior panels have found evidence of bad faith where the confusingly similar domain name is used to promote links in competition with the complainant, and the respondent is likely profiting through the diversionary scheme. See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant). The Panel here finds that Respondent has attempted to create user confusion through the <cheepcaribbean.com> domain name and resolving website, thus supporting a conclusion of bad faith under Policy ¶ 4(b)(iv).
Lastly, Complainant asserts that the <cheepcaribbean.com> domain name is a typosquatted version of the CHEAPCARIBBEAN.COM mark, and argues that typosquatting has been deemed indicative of bad faith. Prior panels have found bad faith where the respondent registered a common misspelling of the complainant’s mark in order to direct Internet users to an unaffiliated website. See Indep. Ins. Agents & Brokers of Am., Inc. v. Liqian, FA 1582252 (Nat. Arb. Forum Nov. 10, 2014), “Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name wishing and hoping that Internet users will inadvertently type the malformed string […] Respondent’s typosquatting is, in itself, evidence of Policy ¶ 4(a)(iii) bad faith.” The Panel again notes that the disputed domain name differs from the mark by the substitution of a single letter. The Panel here finds that such behavior amounts to typosquatting and concludes that Respondent’s typosquatting further indicates Respondent’s bad faith under 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 <cheepcaribbean.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 1, 2015
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