OpenTable, Inc. v. Above.com Domain Privacy
Claim Number: FA1506001626187
Complainant is OpenTable, Inc. (“Complainant”), represented by David A.W. Wong of Barnes & Thornburg LLP, Indiana, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oipentable.com>, registered with Above.com Pty 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 26, 2015; the Forum received payment on June 30, 2015.
On June 30, 2015, Above.com Pty Ltd. confirmed by e-mail to the Forum that the <oipentable.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. 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 July 1, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 21, 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@oipentable.com. Also on July 1, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On July 27, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 the OPENTABLE mark in connection with its business as a leading provider of reservation, table management, and guest management software for restaurants. Complainant has rights in the OPENTABLE mark through registration of the mark with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,145,088, registered September 19, 2006). Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark because the disputed domain merely adds the letter “i” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed <oipentable.com> domain name. Respondent is not commonly known by the disputed domain name based on WHOIS information and a lack of evidence to the contrary. Further, Respondent’s use of a confusingly similar domain name to resolve to a website that hosts commercial links to third-party websites, some of which directly compete with Complainant, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent’s registration and use of the disputed domain name is in bad faith. Respondent uses the disputed domain name to attract and confuse internet users who are seeking Complainant’s legitimate website. In addition, Respondent was aware of Complainant’s rights in the OPENTABLE mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, OpenTable, Inc., uses the OPENTABLE mark in connection with its business as a leading provider of reservation, table management, and guest management software for restaurants. Complainant has rights in the OPENTABLE mark through registration of the mark with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,145,088, registered September 19, 2006).
Respondent, Above.com Domain Privacy, registered the <oipentable.com> domain name on December 9, 2011. Respondent uses the domain name to resolve to a website that hosts commercial links to third-party websites, some of which directly compete 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 OPENTABLE mark under Policy ¶ 4(a)(i) through registration of the mark with multiple trademark agencies including the USPTO (Reg. No. 3,145,088, registered September 19, 2006). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (concluding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter “i” and the gTLD “.com.”
The WHOIS information for the <oipentable.com> domain name shows that Respondent registered the domain using a privacy service. 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 use of a confusingly similar domain name to resolve to a website that hosts commercial links to third-party websites is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and 4(c)(iii). A respondent lacks rights and legitimate interests in a disputed domain name where the respondent used the domain to resolve to a website that linked users to other websites for respondent’s commercial benefit. See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy).
Respondent registered and uses the website in bad faith under Policy ¶ 4(b)(iv).
Respondent uses the <oipentable.com> domain name to attract and confuse Internet users who are seeking Complainant’s legitimate website. Respondent’s disputed domain name is used to host click-through links and redirects to websites that attempt to get users to participate in surveys. See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
Respondent uses the resolving website to redirect Internet users to competitors of Complainant. Such use constitutes disruption under Policy ¶ 4(b)(iii), thereby showing bad faith in registration and use. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent had actual knowledge of Complainant's rights in the OPENTABLE mark. Respondent’s offerings on the disputed domain in combination with the close resemblance of the domain to Complainant’s mark shows that Respondent had actual knowledge of Complainant's mark and rights. Therefore, Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
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 <oipentable.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 10, 2015
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