Airbnb, Inc. v. Nima Rahnemoon
Claim Number: FA1706001737766
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California. Respondent is Nima Rahnemoon (“Respondent”), California.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnbapi.org>, (‘the Domain Name’) registered with GoDaddy.com, LLC.
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.
<<Dawn Osborne of Palmer Biggs IP>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 28, 2017; the Forum received payment on June 28, 2017.
On Jun 29, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <airbnbapi.org> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 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@airbnbapi.org. 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 20, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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’s contentions can be summarised as follows:
Complainant owns the AIRBNB registered trade mark, inter alia, in the USA for online accommodation services. It owns the airbnb.com domain name among others containing the AIRBNB mark. It has trade mark registrations for its Belo trade mark which it uses in the colour ‘rausch’.
The Domain Name, registered in 2015, incorporates Complainant’s AIRBNB mark in its entirety. Until it was disabled by Respondent’s hosting service Respondent was using the Domain Name to distribute unauthorised application programming interface (API) code, data and information for which Complainant is the copyright owner and which Complainant has not intended or authorised for distribution. Respondent was using the Domain Name to confuse visitors into thinking Complainant’s was associated with Respondent’s site and that Complainant had given permission to access, reproduce and further distribute Complainant’s copyright software or to access its system using information posted at the Domain Name. In this context, this use of API in the Domain Name is generic and does nothing to distinguish the Domain Name from Complainant’s mark. It, in fact, increases confusion as it conveys the false message to users that the web site at the Domain Name is a way to legitimately access Complainant’s API.
The inclusion of a gTLD does not distinguish the Domain Name from Complainant’s AIRBNB mark.
Respondent has no rights or legitimate interests in the Domain Name. Respondent is not commonly known by the Domain Name.
Respondent uses on its web site a copy of Complainant’s registered Belo logo and uses it in Complainant’s corporate colour rausch. Its use to mislead users that the site attached to the Domain Name was authorised by Complainant and to infringe Complainant’s copyright cannot be a bona fide offering of goods and services. It is commercial, so cannot be non commercial legitimate fair use.
The Domain Name was registered and is being used in bad faith. The use being made of the site attached to the Domain Name to access Complainant’s systems and the use of Complainant’s logo and corporate colours shows Respondent was aware of Complainant and its business at all times. Use of ‘The Official Unofficial Airbnb API docs’ on site is confusing because of the use of the word ‘Official’ at the beginning.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the AIRBNB registered trade mark, inter alia, in the USA for online accommodation services with first use in commerce recorded as 2009. It owns the airbnb.com domain name among others containing the AIRBNB mark. It has trade mark registrations for its Belo trade mark which it uses in the colour ‘rausch’.
The Domain Name registered in 2015 has been used to distribute without permission copyright material of Complainant’s which enabled unauthorised access to its systems. Complainant’s name, logo and corporate colours were used on the site attached to the Domain Name as well as the words ‘official unofficial Airbnb API docs’.
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 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 and/or Confusingly Similar
The Domain Name in this Complaint combines Complainant’s AIRBNB mark (registered in the USA for online services related to accommodation with first use recorded as 2009), the generic term ‘api’ (reflecting the application programming interface code belonging to Complainant offered on the web site attached to the Domain Name) and the gTLD .org.
The addition of terms which are related to Complainant’s services supports a finding of confusing similarity. Accordingly, the addition of this generic abbreviation ‘api’ does not serve to distinguish the Domain Name from Complainant’s AIRBNB mark especially bearing in mind that the use of it is merely descriptive of use of Complainant’s API code on Respondent’s site. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec 10, 2015) (holding that the addition of generic terms particularly terms pertaining to complainant’s business, do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4 (a) (i). )
The gTLD .org does not serve to distinguish the Domain Name from the AIRBNB mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
Respondent does not appear to be commonly known by AIRBNB Complainant’s mark. Complainant has not authorised Respondent to use this mark. The use of the Domain Name is commercial and so cannot be legitimate non commercial use.
It is clear from the evidence that Respondent has used the site attached to the Domain Name to promote illegal unauthorised use of Complainant’s systems in a confusing manner using Complainant’s name and corporate colours to suggest it was authorised when it was not. This use of the Domain Name makes it obvious that Respondent was aware of the significance of the AIRBNB name and Complainant’s rights at the time of registration. The usage of Complainant’s AIRBNB mark which has a significant reputation to provide unauthorised access to Complainant’s system is not fair, the site does not make it clear that there is no commercial connection with Complainant and the use is unlawful. As such it cannot amount to the bona fide offering of goods and services. See Am Int’l Group Inc. v Busby, FA 156251 (Forum May 30, 2003)(finding that the disputed domain name was registered and used in bad faith where Respondent hosted a web site that duplicated Complainant’s mark and logo giving every appearance of being associated with Complainant’s business when it was not.)
Respondent has not answered this Complaint and has not provided any legitimate reason why she should be able to use Complainant’s trade marks or its copyright material and data in this way. As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
As determined above Respondent's use of the site is commercial and she is using it to make a profit from providing unauthorised access to Complainant’s systems and copyright material in a confusing manner. The use of Complainant’s name, registered logo and corporate colours on the web site attached to the Domain Name indicates Respondent was aware of Complainant’s rights at the time of registration. It seems clear that the use of Complainant’s mark in the Domain Name would cause people to associate the website at the Domain Name with Complainant and its business and services. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating likelihood of confusion with Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of the web site. See H-D Michigan, Inc. v Petersons Auto., FA 135608 (Forum Jan 8, 2003)(finding that the disputed domain name was registered and used in bad faith pursuant to Policy 4 (b)(iv) through respondent’s use and registration of the domain name to intentionally attract Internet users to its fraudulent web site by using Complainant’s famous marks). This use is also unlawful and disruptive.
As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith under paragraphs 4 (b)(iii) and (iv) and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <airbnbapi.org> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: July 25,2017
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