Fareportal Inc. v. Arun meelyan
Claim Number: FA1706001736954
Complainant is Fareportal Inc. (“Complainant”), represented by Eleanor M. Lackman of Cowan, DeBaets, Abrahams & Sheppard LLP, New York, U.S.A. Respondent is Arun meelyan (“Respondent”), Minnesota, U.S.A.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bookcheapoair.us>, registered with GoDaddy.com, LLC.
The undersigned certifies that she acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the Forum electronically June 22, 2017; the Forum received payment June 22, 2017.
On June 23, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <bookcheapoair.us> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and 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 June 29, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 19, 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@bookcheapoair.us. Also on June 29, 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 July 24, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum 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 usTLD Policy, usTLD 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.
Complainant’s Contentions in this Proceeding:
Complainant is a technology company that develops computer software used to power travel-related websites and registered the CHEAPOAIR mark with the United States Patent and Trademark Office (“USPTO”) in furtherance of its business. See Compl., at Attached Annex 2 (Reg. No. 3,576,166, registered Feb. 17, 2009). Respondent’s <bookcheapoair.us> domain name is confusingly similar to Complainant’s CHEAPOAIR mark because the domain name incorporates the mark in its entirety and merely adds a generic term “book”, which is commonly associated with booking air travel, i.e. Complainant’s business, and the country code top-level domain (“ccTLD”), “.us.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is neither commonly known by the disputed domain name nor authorized to use Complainant’s mark. Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to mislead Internet users searching for Complainant’s services.
Respondent registered and is using the disputed domain name in bad faith. Respondent cannot deny it had actual knowledge of Complainant’s rights given Respondent’s full inclusion of Complainant’s mark. Furthermore, federal registration of the CHEAPOAIR mark implies Respondent’s constructive notice of Complainant’s rights in the mark. Additionally, Respondent’s use of the disputed domain name to confuse Internet users as to the source, affiliation and sponsorship of its website, which offers services attempting to compete with Complainant, demonstrates bad faith. The initial interest confusion created by Respondent’s use of the domain name alone supports a finding of bad faith. Finally, Respondent failed to respond to Complainant’s cease and desist letter, which corroborates bad faith.
Respondent’s Contentions in Response:
Respondent did not file a Response. Respondent registered the disputed domain name April 25, 2017.
Complainant established rights and legitimate interests in the disputed domain name containing its protected mark.
Respondent has no rights or legitimate interests in the mark or the disputed domain name.
Respondent registered a disputed domain name containing Complainant’s protected mark and the domain name is confusingly similar to the mark.
Respondent registered and used the disputed domain name in bad faith.
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 Complainant to 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 or 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.
Given 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 will draw such inferences as the Panel 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.”).
Identical or Confusingly Similar:
Complainant established rights in the CHEAPOAIR mark through its registration of that mark with the USPTO. See Compl., at Attached Annex 2 (Reg. No. 3,576,166, registered Feb. 17, 2009). Registration of a mark with the USPTO and other entities sufficiently establishes required rights in the mark for purposes of the Policy. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office). Accordingly, the Panel finds that Complainant established its rights in or to the CHEAPOAIR mark under Policy ¶ 4(a)(i).
Next, Complainant argues that Respondent’s <bookcheapoair.us> domain name is confusingly similar to Complainant’s CHEAPOAIR mark because the domain name incorporates the mark in its entirety and merely adds a generic term “book”, which is commonly associated with booking air travel, i.e. Complainant’s business, and the ccTLD “.us”. The addition of descriptive words—especially those related to a complainant’s corporate activities—fails to sufficiently distinguish domain names from registered marks. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of descriptive terms, particularly terms that pertain to complainant’s business, do not adequately distinguish a disputed domain name from complainant’s mark under Policy ¶ 4(a)(i).). Furthermore, the addition of a ccTLD is irrelevant to the similarity analysis. CDW Computer Ctrs., Inc. v. The Joy Co., FA 114463 (Forum July 25, 2002) (finding that the addition of the ccTLD “.us” is inconsequential and does not defeat a claim of confusing similarity). Therefore, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s CHEAPOAIR mark in which Complainant has rights.
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The Panel finds that Respondent registered a disputed domain name that contains in its entirety Complainant’s protected mark and is confusingly similar to that mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights or Legitimate Interests:
Complainant must first make a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden of proof shifts to Respondent to show it does have such 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); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the <bookcheapoair.us> domain name as required by Policy ¶ 4(a)(ii). In addition to asserting that it has neither authorized nor licensed Respondent’s use of the CHEAPOAIR mark, Complainant contends that Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii). When a respondent fails to submit a response, panels may look to the WHOIS records to establish the lack of affiliation between a registrant and a domain name. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Here, the Panel notes that the WHOIS information concerning <bookcheapoair.us> identifies “Arun meelyan” as the registrant, which supports Complainant’s argument that no evidence suggests that Respondent is commonly known by the domain name. See Compl., at Attached Ex. A. The Panel finds that Respondent is not commonly known by the disputed domain name and has no rights or legitimate interest in, the <bookcheapoair.us> domain name pursuant to Policy ¶ 4(c)(ii).
The Panel further agrees that nothing in the available evidence indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore, this Panel finds that Respondent did not satisfy Policy ¶ 4(c)(i).
Complainant argues that Respondent is using the disputed domain name to mislead and divert Internet users who are searching for Complainant’s services and therefore Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use. Attempting to divert Internet users is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent for Respondent’s benefit are not bona fide offerings of goods or services under Policy ¶ 4(c)(i) and are not legitimate noncommercial or fair uses under Policy ¶ 4(c)(iii).”). Complainant attaches screenshots of both Respondent’s resolving website and Complainant’s own website, demonstrating that Respondent offers identical and competing services, and thereby demonstrating the likelihood that Respondent is using the disputed domain name to divert Internet users searching for Complainant’s services. Compare Compl., at Attached Annex 3 with Compl., at Attached Annex 4. This Panel finds it likely that Respondent is attempting to divert Internet users by using the disputed domain name, and finds that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain name that contains in its entirety Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration or Use in Bad Faith:
Complainant argues that Respondent is using <bookcheapoair.us> to attract Internet users to its website for commercial gain. When a respondent uses a disputed domain name to resolve to a website that offers competing services or products, the Panel may infer an intent to attract Internet users for commercial gain and thereby find that Respondent registered, or is using, the disputed domain name in bad faith. See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Complainant attaches screenshots of both Respondent’s resolving website and Complainant’s own website, demonstrating that Respondent offers identical and competing services, and thereby demonstrating the likelihood that Respondent is using the disputed domain name to divert Internet users searching for Complainant’s services. Compare Compl., at Attached Annex 3 with Compl., at Attached Annex 4. The Panel finds Complainant’s evidence sufficient to support an inference that Respondent acts to attempt to attract Internet users for commercial gain, and the Panel finds that Respondent registered, and is using, the disputed domain name in bad faith.
Furthermore, Complainant urges that the initial interest confusion created by Respondent’s use of the disputed domain name alone supports an inference of bad faith. When a disputed domain name contains a mark in its entirety and is likely to create confusion due to the association of that mark with Complainant, then, if the respondent fails to allege any good faith basis for its use, the Panel may find that initial interest confusion is likely to result from the use of the domain name. See Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding bad faith when (1) the domain name contains the complainant’s mark in its entirety, (2) the mark is a coined word, well-known and in use prior to the respondent’s registration of the domain name, and (3) the respondent fails to allege any good faith basis for use of the domain name). The creation of such confusion demonstrates bad faith. Id. Complainant attaches a screenshot of its website showing that the CHEAPOAIR mark, included in its entirety in the disputed domain name, is associated with Complainant’s airfare booking business. See Compl., at Attached Annex 3. The Panel finds that Complainant’s longstanding use of its CHEAPOAIR mark, since at least 2009, in connection with air fare booking, supports a finding that Respondent’s use creates an initial interest confusion and therefore that Respondent registered, or is using, the disputed domain name in bad faith.
In analyzing bad faith, the Panel may also look beyond the enumerated parameters of Policy ¶ 4(b) to the totality of the circumstances surrounding a particular dispute. See CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith”). Complainant argues that Respondent must have had actual knowledge of Complainant’s rights, or, at least, the federal registration of the mark implies Respondent’s constructive notice. Though constructive notice does not support findings of bad faith, actual knowledge of Complainant’s rights supports such a finding. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). When a connection between the content on the resolving website and Complainant’s mark exists and is obvious, the Panel may make the inference that Respondent had actual knowledge and bad faith as shown by the mark used in the disputed domain name and the use made of it. Here, Respondent attempts to compete with Complainant using Complainant’s own protected mark and the bad faith is obvious. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”). Complainant attaches screenshots of both Respondent’s resolving website and Complainant’s own website, demonstrating that Respondent offers identical and competing services, and thereby demonstrating the likelihood that Respondent is using the disputed domain name to divert Internet users searching for Complainant’s services. Compare Compl., at Attached Annex 3 with Compl., at Attached Annex 4. This Panel finds that the content on Respondent’s website supports an inference of actual knowledge of Complainant’s rights, and the Panel finds that Respondent registered and is using, the disputed domain name in bad faith.
Finally, Complainant alleges that Respondent failed to respond to a cease and desist letter. Failure to respond to a cease and desist notice also supports findings of bad faith. See Seiko Epson Corporation v. Asish Sen, FA 1702054 (Forum Dec. 12, 2016) (finding that failing to respond to a demand letter has been found to constitute bad faith). Complainant attaches a screenshot of a cease and desist notice it sent to Respondent. See Compl., at Attached Annex 5. Respondent failed to offer any contrary information to refute Complainant’s allegations and the Panel finds that such evidence supports a finding of bad faith.
Respondent makes no contentions relative to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and used a disputed domain name containing Complainant’s protected mark in its entirety in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bookcheapoair.us> domain name be TRANSFERRED from Respondent to Complainant..
Hon. Carolyn Marks Johnson, Panelist
Dated: August 7, 2017
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