Airbnb, Inc. v. Norman King / Target Marketing Group
Claim Number: FA1707001738345
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California. Respondent is Norman King / Target Marketing Group (“Respondent”), Mexico.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <air-bnb.org>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 3, 2017; the Forum received payment on July 3, 2017.
On July 4, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <air-bnb.org> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 5, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 25, 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 email@example.com. Also on July 5, 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.
Respondent did not submit a formal response, but it did send an e-mail to the Forum, see below. Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 27, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
Complainant state that it is the owner of the exceptionally popular AIRBNB brand, known worldwide for its revolutionary approach to people-powered travel and hospitality. Complainant is a trusted community marketplace for people to list, discover, and book unique accommodations around the world – online or from a mobile phone or tablet. Complainant connects people to unique travel experiences, at any price point, in more than 65,000 cities and 191 countries. By July 2016, Complainant had celebrated its 100 millionth guest. As of April 2017, 1.2 million people were staying at Airbnb listed properties per night. There are now 3.6 million active listings on Complainant’s service. Complainant registered the AIRBNB mark in the United States in 2010. The mark is also registered elsewhere around the world, and it is well-known.
According to Complainant, the disputed domain name is confusingly similar to its mark because it incorporates the AIRBNB mark in its entirety, adding only the generic top-level domain (“gTLD”) “.org,” and a hyphen between “air” and “bnb”, neither of which meaningfully distinguishes the domain name from Complainant’s registered mark. Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized Respondent to use the AIRBNB mark for any purpose. Respondent also fails to use the disputed domain name in connection with any bona fide offering of goods or services, because Respondent is using the domain name to divert Internet users to a site that implements Complainant’s color scheme and that offers services that compete with those of Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and continues to use the disputed domain name in bad faith. Respondent’s use of the disputed domain involves attracting Internet users to its site using Complainant’s notoriety, so that it may personally profit by way of enhanced internet traffic. Further, Respondent has repeatedly offered to sell the disputed domain name to Complainant for an amount in excess of out of pocket costs. Complainant cites UDRP precedents to support its position.
Respondent failed to submit a formal Response in this proceeding. However, it did send an e-mail to the Forum, which is reproduced verbatim here:
The Domain name Air-BnB.org is available for sale at $25,000. This domain name was offered to both Brian Chesky and airbnb.com several months ago, along with Jonathan Mildenhall and Joe Gibbia and each one declined the offer and they further indicated in their response that they were not interested in the domain name. They said it was not important to airbnb.com and they were cool with that decision. I thought they must be crazy? Now suddenly you are interested... Or maybe you simply intend to Bully us into submission with your lawyers, your huge might and your 30 Billion Dollar Valuation. You may have enough money now but this will be a public relations nightmare for you. If you continue to Bully me I promise you that I will attach copies of all the emails between myself and Brian Chesky and Jonathan Midenhall and I will publish this complaint on all Public Forums on the Internet. I will publicly post my response and all documents filed in this dispute will be published on ALL public forums. I am an SEO expert so I expect to rank these articles on Page One of Google. So,To make a long story short... If you wanted this domain you should have bought it 10 years ago. Obviously this domain has nothing to do with your Business or your Brand or you would have registered the domain when you started 10 years ago. Now, If you want this domain why don’t you simply BUY NOW! Instead of using Bully tactics. It is still available For Sale. Let me know if you still want it. The price is still only $25,000. Make an Offer?? Why Not? Now we have built a business on this domain. TAKE A LOOK. Air-BnB.org
Please let me know if you want to buy this domain and website for $25,000. Thank You
Complainant has rights in the mark AIRBNB dating back to 2010. The mark is well known.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain name to offer services that compete with those of Complainant, and it offered to sell the disputed domain name to Complainant for a sum well over out of pocket costs.
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.”).
As preliminary matter, the Panel notes that Respondent argues that, since Complainant could have registered the disputed domain name ten years ago, but did not do so, Complainant has implicitly admitted that “this domain has nothing to do with your [Complainant’s] Business or your Brand”.
This defense is not admissible under the Policy. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, states under 4.17: “Panels have widely recognized that mere delay between the registration of a domain name and the filing of a complaint neither bars a complainant from filing such case, nor from potentially prevailing on the merits.” The same holds for the situation where a complainant has, for many years, chosen not to register a domain name related to its mark: complainants have no obligation to register all possible domain names related to their marks, and they can initiate proceedings under the Policy at any time for any domain names that are confusingly similar to their marks.
The disputed domain name is confusingly similar to Complainant’s AIRBNB mark because it is composed entirely of the mark, with only two minor additions: a hyphen between “air” and “bnb”, and a “.com” gTLD. Neither of these sufficiently distinguishes the disputed domain name from its AIRBNB mark. The addition of a hyphen cannot eliminate confusing similarity. See Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"). Further, the addition of the “.com” gTLD is insufficient to preclude a finding of confusing similarity. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). Therefore, the Panel finds that the additions made to Complainant’s AIRBNB mark in <air-bnb.org> do not serve to differentiate the two for the purposes of Policy ¶ 4(a)(i).
Complainant has neither authorized nor licensed Respondent’s use of the AIRBNB mark. Further, 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 the disputed domain name identifies “Norman King” as the registrant, which provides no evidence that Respondent is commonly known by the domain name. As such, the Panel finds that Respondent is not commonly known by, and thus lacks rights and legitimate interest in, the disputed domain name pursuant to Policy ¶ 4(c)(ii).
Respondent is using the disputed domain name to divert Internet users to Respondent’s website, which offers competing services and imitates Complainant by using its official color scheme. Attempting to divert Internet users, especially to a website that offers competing services, indicates 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. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel 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 has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, Respondent offered to sell the domain name to Complainant for a sum well over out of pocket costs. Respondent’s offer to sell the disputed domain name can be a basis for a finding of bad faith. See Neiman Marcus Group, Inc. v. AchievementTec, Inc., FA 192316 (Forum Oct. 15, 2003) (finding the respondent’s offer to sell the domain name for $2,000 sufficient evidence of bad faith registration and use under Policy ¶ 4(b)(i)). Therefore, the Panel finds that Respondent registered, and is using the disputed domain name in bad faith.
Further, as already noted, Respondent is using the disputed domain name to attract Internet users, seeking Complainant’s services, to Respondent’s website, for Respondent’s commercial gain. Using a disputed domain name to divert Internet users to a website, which displays competing products or services, is evidence of 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).”). Thus the Panel finds that Respondent registered, and is using, the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <air-bnb.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 27, 2017
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