Airbnb, Inc. v. anna shaffer
Claim Number: FA1711001760159
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is anna shaffer (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnb.bike>, registered with NameCheap, Inc.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 28, 2017; the Forum received payment on November 28, 2017.
On Nov 28, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the <airbnb.bike> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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.bike. 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 27, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant is 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 registered the AIRBNB mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,890,025, registered Dec. 14, 2010).
Respondent’s <airbnb.bike> domain name is identical or confusingly similar to Complainant’s mark as it consists of the AIRBNB mark verbatim and adds the generic top-level domain (“gTLD”) “.bike.”
Respondent has no rights or legitimate interests in the <airbnb.bike> domain name. Respondent is not commonly known by the disputed domain name, as the WHOIS information lists the registrant as “anna shaffer.” Complainant also has not authorized, licensed, or otherwise permitted Respondent to use the mark. Further, Respondent does not use the at-issue domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the domain name simply resolves to a parked webpage displaying related links. Additionally, Respondent is using email addresses associated with the domain name to impersonate Complainant in emails to Complainant’s customers, to phish for their personal information, and to defraud them by inducing them to transfer money to Respondent (off Complainant’s platform) in return for lodgings that, on information and belief, are nonexistent.
Respondent registered and uses the <airbnb.bike> domain name in bad faith. Respondent registered the domain name with Complainant’s mark in mind and with intent to cause confusion. Further, Respondent is using email addresses associated with the domain name to impersonate Complainant in emails to Complainant’s customers, to phish for their personal information, and to defraud them by inducing them to transfer money to Respondent (off Complainant’s platform) in return for nonexistent lodgings. Finally, in light of the fame and notoriety of Complainant’s AIRBNB mark, it is inconceivable that Respondent could have registered the disputed domain name without actual and/or constructive knowledge of Complainant’s rights in the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the AIRBNB mark through the registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the AIRBNB trademark.
Respondent uses the <airbnb.bike> domain name to host email which pretends to be sponsored by Complainant so that it may defraud third parties into transferring funds to Respondent’s account for non-existing services as well as to phish for personal information.
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.”).
The at-issue domain name is identical to a trademark in which Complainant has rights.
Complainant owns a registered trademark for its AIRBNB mark. The mark’s USPTO trademark registration is conclusive evidence of Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <airbnb.bike> domain name contains Complainant’s entire AIRBNB trademark followed by a necessary top-level, here “.bike”. The slight difference between Complainant’s trademark and the <airbnb.bike> domain name fail to distinguish the domain name from Complainant’s mark for the purpose of Policy ¶ 4(a)(i). Indeed, the mere addition of a top-level domain name is of no consequence regarding Policy ¶ 4(a)(i) analysis. Therefore, the Panel concludes that Respondent’s <airbnb.bike>domain name is identical to Complainant’s AIRBNB trademark. See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “anna shaffer” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by the <airbnb.bike> domain name. The Panel therefore concludes that Respondent is not commonly known by the <airbnb.bike> domain name for the purposes of Policy ¶ 4(c)(ii). SeeCoppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s <airbnb.bike> domain name addresses a webpage that that displays hyperlinks some of which are related to Complainant, e.g. “Airbnb New York” and “Treehouse Rentals.” Additionally, Respondent uses the domain name to phish for personal information and host email to defraud internet users. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business); see also, Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below Policy ¶4(b) bad faith circumstances are present and there is additional non-Policy ¶4(b) evidence from which the Panel may independently conclude that Respondent acted in bad faith pursuant to Policy ¶4(a)(iii).
Respondent’s ultimate purpose in registering and using the at-issue domain name is to financially gain by perpetrating multiple frauds on third party internet users. To wit, Respondent capitalizes on Complainant’s trademark via email originating from the trademark identical <airbnb.bike> domain that tricks internet users in to believing they are dealing with Complainant when they are not. See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”).
Furthermore and as mentioned above regarding rights and legitimate interests, the <airbnb.bike> domain name addresses a webpage with a variety of what appear to be pay-per-click hyperlinks. These circumstances demonstrate Respondent’s bad faith registration and use of the <airbnb.bike> domain name pursuant to Policy ¶ 4(b)(iv). See Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained).
Finally, Respondent had actual knowledge of Complainant’s rights in the AIRBNB mark when Respondent registered the <airbnb.bike> domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s AIRBNB trademark as well as from Respondent’s use of the AIRBNB mark in emails falsely postured as originating from Complainant. Registering and using a confusingly similar domain name, with knowledge of Complainant’s rights in such domain name, shows bad faith registration and use pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
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.bike> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 22, 2017
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