Kayak Software Corporation (Delaware Corporation) v. ITlinks.com
Claim Number: FA1511001647695
Complainant is Kayak Software Corporation (Delaware Corporation) (“Complainant”), represented by Richard S. Stockton of Banner & Witcoff, Ltd., Illinois, USA. Respondent is ITlinks.com (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kayaktravel.us>, registered with OnlineNIC, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 18, 2015; the Forum received payment on November 18, 2015.
On November 19, 2015, OnlineNIC, Inc. confirmed by e-mail to the Forum that the <kayaktravel.us> domain name is registered with OnlineNIC, Inc. and that Respondent is the current registrant of the name. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On November 19, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 9, 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@kayaktravel.us. Also on November 19, 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 December 17, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the 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 KAYAK mark in connection with its business in providing on-line price comparisons of travel and lodging services. Complainant owns the KAYAK mark through numerous trademark registrations around the country, including with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3110651, registered June 27, 2006). The disputed domain name is confusingly similar to Complainant’s mark, because Respondent has simply attached the descriptive term “travel” and the country code top-level domain (“ccTLD”) “.us.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, evidenced by the available WHOIS information for the disputed domain name. Further, Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name. Rather, Respondent uses the disputed domain name to redirect Internet users to Complainant’s own website through which Respondent presumably gains.
Respondent has registered or is using the disputed domain name in bad faith. First, Respondent uses the disputed domain name to redirect Internet users to Complainant’s own website for the purposes of commercial gain. Additionally, Respondent had actual knowledge of Complainant’s rights in the KAYAK mark when it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on September 28, 2015.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent engaged in bad faith use and registration of the disputed domain name.
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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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.”).
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark. The Panel further finds that the Complainant’s trademark registration is adequate proof that it has interests in the mark.
The Respondent arrives at the disputed domain name by merely appending the generic word “travel” and the ccTDL “.us” to the registered trademark. Neither change sufficiently distinguishes the disputed domain name from the registered mark of the Complainant.
The Panel finds that the Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent is apparently not commonly known by the disputed domain name under Policy ¶ 4(c)(iii). The available WHOIS information lists “Itlinks.com” as registrant of the disputed domain name. There is no other evidence or argument to indicate that Respondent is commonly known by the disputed domain name.
Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii).
The Respondent has not submitted any evidence to demonstrate that it holds a mark identical to the <kayaktravel.us> domain name. Failure to provide evidence of a trademark on which a disputed domain name is based is sufficient evidence to find a lack of rights or legitimate interests under Policy ¶ 4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that the respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.us> domain name).
Accordingly, the Panel finds that Respondent has not carried its burden in satisfying this portion of USDRP Policy.
Further, Complainant argues that Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(ii) and 4(c)(iv). Rather, Complainant alleges that Respondent uses the disputed domain name to simply redirect to Complainant’s own website, through which Respondent purportedly financially gains. As there is no evidence in the record to refute these claims, the Panel accepts them as reasonable and true.
Thus, the Panel finds that Respondent has failed to establish rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii) or Policy ¶ 4(c)(iv), respectively.
Complainant urges that Respondent has acted in bad faith under Policy ¶ 4(b)(iv), in that Respondent uses the disputed domain name to redirect Internet users to Complainant’s own website. See Compl., at Attached Ex. 5. As there is also no evidence in the record to refute this claim, the Panel accepts this as reasonable and true. As such, the Panel finds that Respondent has acted in bad faith under Policy ¶ 4(b)(iv).
Next, Complainant argues that due to the fact that Respondent redirects Internet users to Complainant’s own website, Respondent must have had actual and/or constructive knowledge of Complainant’s rights in the KAYAK mark when registering the disputed domain name. While panels have concluded that constructive notice is not sufficient to support a bad faith finding, the Panel finds that, due to the fame of Complainant's mark, Respondent had actual knowledge of the mark and Complainant's rights. Thus, the Panel finds that Respondent registered the disputed domain name in bad faith under 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 <kayaktravel.us> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: December 18, 2015
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