Airbnb, Inc. v. Alan Pasquazzi
Claim Number: FA1711001760147
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Alan Pasquazzi (“Respondent”), Austria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnb.bet> (‘the Domain Name’), 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.
Dawn Osborne of Palmer Biggs IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 28, 2017; the Forum received payment on November 28, 2017.
On November 29, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <airbnb.bet> 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 November 30, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 20, 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@airbnb.bet. Also on November 30, 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 December 22, 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 well known AIRBNB mark registered, inter alia in the United States and used since 2009 in relation to on line booking of accommodation services. It also owns airbnb.com.
The Domain Name registered in 2017 wholly incorporates Complainant’s mark. The use of the gTLD .bet does not distinguish the Domain Name from Complainant’s marks being merely a technical function of the Domain Name.The Domain Name is therefore identical to Complainant’s mark for the purposes of the Policy.
Respondent is using e mail addresses associated with the Domain Name to masquerade as Complainant and to divert business from Complainant to Respondent.
Respondent has no rights or legitimate interests in the Domain Name. It currently does not resolve to a web site and has not been used for the bona fide offering of goods and services. Respondent is not commonly known by the Domain Name. Complainant has not authorised Respondent to use Complainant’s mark.
Respondent is using e mail addresses associated with the Domain Name to impersonate Complainant, to phish for their personal information and to defraud them infusing them to transfer money to Respondent in return for lodgings that are non existent. Respondent is passing itself off as Complainant. The Domain Name was registered to divert communications intended for Complainant. This is not legitimate non commercial or fair use.
Respondent has registered and used the Domain Name in bad faith. The e mail addresses associated with the Domain Name to pass itself off as Complainant in a fraudulent scheme. This is causing confusion on the internet satisfying Policy 4 (b)(iv) and competitive and disruptive satisfying Policy 4 (b)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the well known AIRBNB mark registered, inter alia in the United States and used since 2009 in relation to on line booking of accommodation services. It also owns airbnb.com.
The Domain Name has not been linked to a web site, but has been used to send e mails offering accommodation services not connected with Complainant.
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, inter alia, in the USA for on line services relating to accommodation with first use recorded as 2009) and the gTLD .bet.
The gTLD .bet does not serve to distinguish the Domain Name from Complainant’s AIRBNB mark. 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 Complainant’s mark. Complainant has not authorised Respondent to use Complainant’s mark. The use of the Domain Name is commercial and so cannot be legitimate non commercial use.
Panels have found that a respondent is not using a disputed domain name for a bona fide offering of goods or services nor a legitimate non commercial or fair use if it uses the name to divert Internet users competing with Complainant under its mark.
Respondent has used the Domain Name to offer competing on line booking services related to accommodation which are not connected with Complainant. The usage of Complainant’s AIRBNB mark which has a reputation in relation to online accommodation booking services for similar services not connected with Complainant is not fair as the e mails do not make it clear that there is no commercial connection with Complainant. 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 Respondent’s attempts to pass itself off as Complainant online was blatant unauthorised use of Complainant’s mark and was evidence Respondent had no rights or legitimate interests in the domain name.)
Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use Complainant’s trade marks in this way. There is no evidence in the documents that the accommodation does not exist or that Respondent’s primary purpose is phishing, however it is enough to satisfy the second limb of the Policy that Respondent is using the Domain Name consisting primarily of Complainant’s mark to offer competing services to Complainant without due cause. As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name.
Registration and Use in Bad Faith
As determined above Respondent's use of the Domain Name is commercial and it is using it to make a profit from competing services not associated with Complainant in a confusing manner. The use of the Domain Name indicates Respondent is aware of Complainant’s rights. It seems clear that the use of Complainant’s mark in the Domain Name would cause people to associate e mails connected with 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 by creating likelihood of confusion with Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of services being offered on line.See CAN Financial Corporation v William Thomson/CAN Insurance, FA1401001541484 (Forum Feb 28, 2014)(finding that Respondent had engaged in bad faith under Policy 4 (b)(iv) by using a confusingly similar domain name to attract internet users offering competing services). This also appears designed to disrupt the business of a competitor. See Fitness International, LLC v Alistair Swodeck/Victor and Murray, FA 1506001623644 (Forum July 9, 2015) (where respondent offered the same services as Complainant and it was held this disrupted Complainant’s business under Policy 4 (b)(iii).)
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 <airbnb.bet> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: January 2, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page