AGIP, LLC Limited Liability Company Delaware v. ICS Inc
Claim Number: FA1412001595001
Complainant is AGIP, LLC Limited Liability Company Delaware (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is ICS Inc (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agodha.com>, registered with Godaddy.Com, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 12, 2014; the National Arbitration Forum received payment on December 12, 2014.
On December 15, 2014, Godaddy.Com, Llc confirmed by e-mail to the National Arbitration Forum that the <agodha.com> domain name is registered with Godaddy.Com, LLC and that Respondent is the current registrant of the name. Godaddy.Com, LLC has verified that Respondent is bound by the Godaddy.Com, 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 December 19, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 8, 2015, 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@agodha.com. Also on December 19, 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 January 13, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 uses AGODA in connection with travel agency services. Complainant has registered AGODA with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,054,915, registered Jan. 31, 2006), which demonstrates rights in the mark. The <agodha.com> domain name incorporates the AGODA mark in full, inserting the letter “h,” and affixing the generic top-level domain (“gTLD”) “.com,” such that it is confusingly similar to the mark.
Respondent has no rights or legitimate interests in the disputed domain name. As indicated by the WHOIS record, Respondent is not commonly known by the disputed domain name. Additionally, Complainant has not authorized Respondent to use the AGODA name. Respondent has failed to use the disputed domain name to provide a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Rather, <agodha.com> resolves to a website promoting a series of links, some of which relate to travel agency services in competition with Complainant. Respondent likely profits from the promoted links.
The <agodha.com> domain name was registered and is being used in bad faith. First, Respondent has listed the disputed domain name for sale, which suggests bad faith pursuant to Policy ¶ 4(b)(i). Further, Respondent has a well-documented history of bad faith as demonstrated by prior UDRP decisions. Such multiple adverse decisions amount to a pattern under Policy ¶ 4(b)(ii), and indicate Respondent’s bad faith. Additionally, Respondent’s use of the disputed domain name implicates Policy ¶ 4(b)(iii) as the resolving website promotes links to competitors of Complainant. As Respondent likely generates referral revenue from the related links, a finding of bad faith under Policy ¶ 4(b)(iv) is also warranted. Also, Respondent’s bad faith is shown by the typosquatting nature of the <agodha.com> domain name, which differs from the AGODA mark by the insertion of a single letter.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, AGIP, LLC Limited Liability Company Delaware, uses AGODA in connection with travel agency services. Complainant has registered AGODA with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,054,915, registered Jan. 31, 2006),
Respondent, ICS Inc, registered the <agodha.com> domain name on May 6, 2013. The domain name resolves to a website promoting a series of links, some of which relate to travel agency services in competition with Complainant.
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 has rights in the AGODA mark under Policy ¶ 4(a)(i) through registration with the USPTO, irrespective of Respondent’s residence in the Cayman Islands. See Homer TLC, Inc. v. Song Bin, FA 1505218 (Nat. Arb. Forum July 30, 2013) (“Complainant’s USPTO registration sufficiently establishes its rights in the HOME DEPOT mark under Policy ¶4(a)(i), despite the fact Respondent resides outside of the United States.”).
Respondent’s <agodha.com> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i) as the domain name incorporates the AGODA mark in full, inserting the letter “h” and affixing the generic top-level domain gTLD “.com.” See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding the respondent’s <microssoft.com> domain name to be confusingly similar to the complainant’s MICROSOFT mark because they differ by only one letter, and “such a small alteration is insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)”); Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”).
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).
Respondent has no rights or legitimate interests in the <agodha.com> domain name. The WHOIS record lists “ICS Inc” as the domain name registrant. Complainant has not authorized Respondent to use the AGODA name. Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the 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 the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Respondent’s <agodha.com> domain name resolves to a website promoting a series of links, some of which relate to travel agency services in competition with Complainant. The resolving links include “Agoda Hotels,” “Hotel Booking Sites,” and “Beach Resort Bali.” Respondent’s use of the <agodha.com> domain name to promote commercial links relating to travel agency services in competition with Complainant show that Respondent has not made 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 Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name 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).”).
Respondent has listed the <agodha.com> domain name for sale for $799, which suggests bad faith under Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name).
Respondent has a history of bad faith as demonstrated by prior adverse UDRP decisions. See Regions Asset Co. v. ICS INC, FA 1436598 (Nat. Arb. Forum Apr. 26, 2012); Assurant Inc. v. ICS INC., FA 1447091 (Nat. Arb. Forum July 17, 2012); Questar Corp. v. ICS INC., FA 1444695 (Nat. Arb. Forum June 27, 2012). The multiple adverse decisions show a pattern of Respondent’s bad faith under Policy ¶ 4(b)(ii). See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”).
Respondent’s resolving website promotes links to competitors of Complainant, which shows 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).”).
Respondent’s use of a confusingly similar domain name to resolve to competing links, presumably for a profit, is evidence of 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).”).
Respondent has also engaged in typosquatting, which shows bad faith under the Policy ¶ 4(a)(iii). See Indep. Ins. Agents & Brokers of Am., Inc. v. Liqian, FA 1582252 (Nat. Arb. Forum Nov. 10, 2014) (“Respondent’s typosquatting is, in itself, evidence of Policy ¶ 4(a)(iii) bad faith.”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agodha.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 27, 2015
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