Fareportal, Inc. v. VIETNAM DOMAIN PRIVACY SERVICES
Claim Number: FA1704001729548
Complainant is Fareportal, Inc. (“Complainant”), represented by UDRP COORDINATOR of CitizenHawk, Inc., California, USA. Respondent is VIETNAM DOMAIN PRIVACY SERVICES (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cheapoaire.com>, <cheapoairflights.com>, <cheapoairways.com>, <cheapoaor.com>, <cheapohair.com>, <cheeapoair.com>, <cheppoair.com>, and <gheapoair.com>, registered with April Sea Information Technology Company Limited.
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 Forum electronically on April 28, 2017; the Forum received payment on April 28, 2017.
On May 5, 2017, April Sea Information Technology Company Limited confirmed by e-mail to the Forum that the <cheapoaire.com>, <cheapoairflights.com>, <cheapoairways.com>, <cheapoaor.com>, <cheapohair.com>, <cheeapoair.com>, <cheppoair.com>, and <gheapoair.com> domain names are registered with April Sea Information Technology Company Limited and that Respondent is the current registrant of the names. April Sea Information Technology Company Limited has verified that Respondent is bound by the April Sea Information Technology Company Limited 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 15, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 5, 2017 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@cheapoaire.com, postmaster@cheapoairflights.com, postmaster@cheapoairways.com, postmaster@cheapoaor.com, postmaster@cheapohair.com, postmaster@cheeapoair.com, postmaster@cheppoair.com, postmaster@gheapoair.com. Also on May 15, 2017, 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 June 9, 2017, 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 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant advertises for travel services, namely, promoting the goods, services, brand identity and commercial information and news of travel and travel related companies on the Internet. Complainant registered its CHEAPOAIR mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,576,166, registered Feb, 17, 2009). Respondent’s <cheapoaire.com>, <cheapoairflights.com>, <cheapoairways.com>, <cheapoaor.com>, <cheapohair.com>, <cheeapoair.com>, <cheppoair.com>, <gheapoair.com> domain names are identical or confusingly similar to Complainant’s mark because each capitalizes on spelling/typographical errors of the CHEAPO AIR mark and appends the generic top-level domain (“gTLD”) “.com” to each of them.
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its CHEAPO mark in any fashion, and Respondent is not commonly known by the disputed domain name. Respondent is using the disputed domains’ resolving webpages to display hyperlinks that compete with Complainant’s business. Such use cannot be construed as a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Respondent has registered and is using the disputed domain names in bad faith. Respondent has a history and pattern of bad faith registration. Respondent attempts to disrupt the business of Complainant by offering links to competing services. Respondent is also attempting to attract Internet traffic and commercially benefit from the goodwill of the CHEAPOAIR mark by creating confusion as to the source, sponsorship, affiliation, or endorsement of its website by using the marks of Complainant. Respondent’s actual knowledge of Complainant’s rights, typosquatting, and use of a privacy shield are further evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Fareportal, Inc., of New York, NY USA. Complainant is the owner of domestic and international registrations for the mark CHEAPOAIR, and numerous related marks constituting the CHEAPOAIR family of marks. Complainant’s registrations include the mark WWW.CHEAPOAIR.COM. Complainant has continuously used its CHEAPOAIR mark since at least as early as 2005, in connection with its provision of information and advertising for travel and travel related companies on the Internet.
Respondent is Vietnam Domain Privacy Services, of Ho Chi Minh, Vietnam. Resondent’s registrar’s address is listed as the same. The Panel notes the following approximate registration dates for the disputed domains:
<cheapoaire.com>……………………………………………………….May 25, 2006
<cheapoairflights.com>…………………………………………………..Feb.28, 2007
<cheapoairways.com>…………………………………………………...May 14, 2008
<cheapoaor.com>………………………………………………..………...Jan. 9, 2007
<cheapohair.com>………………………………………………………..July 28, 2007
<cheeapoair.com>……………………………………………………….Mar. 18, 2007
<cheppoair.com>…………………………………………………….…...Jan. 12, 2007
<gheapoair.com>…………………………………………………………..Oct. 7, 2006
Preliminary Issue: Required Language of Complaint
The Panel notes that the Registration Agreement is written in Vietnamese, thereby making the language of the proceedings in Vietnamese. Complainant has alleged that because Respondent is conversant and proficient in English, the proceeding should be conducted in English. Further, Complainant asserts that Respondent has been involved in numerous prior UDRP decisions where Panels have found Respondent suitably familiar with the English language for these purposes. Complainant also contends the WHOIS information, Respondent’s email address, and all of the content of the resolving webpages are in English.
The Panel has the discretion under UDRP Rule 11(a), to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v Onetz, FA 96196 (Forum Feb. 12, 2001 (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). The Panel here finds it appropriate for the proceedings to go forward in English.
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(f), 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 (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 registered its CHEAPOAIR mark with the USPTO (Reg. No. 3,576,166, registered Feb, 17, 2009). Registration of a mark with the USPTO sufficiently establishes rights for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). The Panel here finds that Complainant has rights in the CHEAPOAIR mark.
Complainant argues that the disputed domain names are identical or confusingly similar to Complainant’s mark because each includes a misspelled version of Complainant’s mark as well as the appendage of the gTLD “.com”. Misspelling a famous mark does not decrease confusing similarities between a mark and a domain name. See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). All of the disputed domain names in the instant proceeding either add a letter, add a word, or substitute a letter with a different letter. The Panel here finds that Respondent has not sufficiently changed the mark, and that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
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 (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). Complainant has met this burden.
Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name. Complainant claims it has not licensed or otherwise authorized Respondent to use its CHEAPOAIR mark in any fashion. A lack of contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name can be evidence of a lack of rights and legitimate interests. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Additionally, WHOIS information can be used to support a finding under Policy ¶ 4(c)(ii) that a respondent is not commonly known by a disputed domain name. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Using a privacy service to conceal the true identity of the registrant can further evince that a respondent is not commonly known by a disputed domain name. See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“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).”). The Panel here notes that the disputed domain names’ WHOIS information lists “VIETNAM DOMAIN PRIVACY SERVICES” as the registrant, and Respondent has failed to file response. The Panel finds Respondent is not commonly known by the disputed domain names.
Complainant next argues that Respondent has not made any bona fide offering of goods or services or any legitimate noncommercial or fair use of the disputed domain names because the resolving webpages display competing hyperlinks. Use of a domain name to display hyperlinks in competition with a complainant’s business cannot be construed as a bona fide offering of goods or services. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Here, Complainant has provided screenshot evidence of the competing hyperlinks on the disputed domain name’s resolving website. The Panel also notes that the resolving webpages include hyperlinks such as “Cheap Flights,” “Cheap Air Tickets,” and “Cheapest Airfair”. The Panel finds sufficient evidence to support the conclusion that Respondent has not made a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
Complainant has proven this element.
Complainant contends that Respondent has engaged in bad faith registration in the instant case by registering multiple domains. Registration of multiple infringing domain names evinces bad faith under Policy ¶ 4(b)(ii). See Philip Morris USA Inc. v. RapidClic / VAUCLIN Olivier, FA1309001520008 (Forum Nov. 7, 2013) (finding that the respondent’s registration of multiple infringing domain names indicates a pattern of bad faith registration and use under Policy ¶ 4(b)(ii)). Here, Respondent has registered eight identical or confusingly similar domain names. Complainant also provides evidence that Respondent has been involved in other adverse UDRP decision in the past. The Panel here finds that Respondent engaged in bad faith registration.
Complainant also asserts that Respondent is disrupting its business by attempting to divert potential customers away from Complainant by displaying hyperlinks that directly compete with Complainant’s airline ticket business. Use of a domain to disrupt a complainant’s business can constitute bad faith under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). Complainant has provided screenshot evidence of Respondent’s resolving webpage which appear to display hyperlinks that directly compete or purport to be affiliated with Complainant. The Panel here finds that Respondent has used Complainant’s mark and the disputed domain names in bad faith.
Complainant further argues that Respondent has registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iv) by attempting to attract Internet traffic and commercially benefit from the goodwill of the CHEAPOAIR mark. Use of a disputed domain name to create confusion as to the source, sponsorship, affiliation, or endorsement of the content therein can constitute bad faith under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). Here, as previously noted, Complainant has provided screenshot evidence of Respondent’s resolving webpages which prominently display Complainant’s marks in addition to links related to Complainant’s field of business. The Panel here finds that Respondent created a likelihood of confusion and registered and used the disputed domain names in bad faith under Policy ¶ 4(b)(iv).
The Panel also notes that Respondent’s use of typosquatting can evidence bad faith registration. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Forum Oct. 15, 2003) (“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).”). Here, Respondent has engaged in typosquatting by registering domain names that prey on Internet users’ typographical and spelling errors, such as substituting a single letter, adding another letter, etc. As such, the Panel holds that Respondent has acted in bad faith under Policy ¶ 4(a)(iii) as well.
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
Complainant has proven this element.
As 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 <cheapoaire.com>, <cheapoairflights.com>, <cheapoairways.com>, <cheapoaor.com>, <cheapohair.com>, <cheeapoair.com>, <cheppoair.com>, and <gheapoair.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: June 23, 2017
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