Airbnb, Inc. v. Thomas Saget
Claim Number: FA1801001767775
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Thomas Saget (“Respondent”), Great Britain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ipo-airbnb.com> (‘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 as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 19, 2018; the Forum received payment on January 19, 2018.
On Jan 20, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <ipo-airbnb.com> 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 January 24, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 13, 2018 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@ipo-airbnb.com. Also on January 24, 2018, 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 February 14, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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 registered trade mark AIRBNB, inter alia, in the USA for on line services related to rental of property with first use in commerce shown as 2009. Its main web site is at airbnb.com. Complainant also has, inter alia, a trade mark registration for its logo known as the Belo logo in the USA for its services with first use shown as 2014. Complainant also uses a corporate colour known as ‘Rausch’.
The Domain Name registered in 2017 incorporates the entirety of Complainant’s mark adding the generic or descriptive acronym ‘IPO’ commonly referring to an initial public offering of securities. The addition of the descriptive acronym ‘IPO’ does nothing to differentiate that domain name from Complainant’s mark.
The addition of a gTLD such as .com does not distinguish the disputed domain name from a mark.
The Domain Name is confusingly similar to Complainant’s mark.
Respondent does not have rights or legitimate interests in the Domain Name.
Respondent is not commonly known by the Domain Name and could not be given the internationally known nature of the AIRBNB mark.
Respondent is not making a legitimate non commercial or fair use of the Domain Name.
Before it was suspended the web site associated with the Domain Name displayed near identical copies of Complainant’s Belo logo and the AIRBNB name in the ‘Rausch’ colour and purported to announce Complainant’s impending and fictitious ‘$50 Billlion IPO’ soliciting investors to be a part of it by completing a form with personal information. Then this was followed up by e mail as part of a suspected scam.
Complainant is not planning an IPO and has not authorised Respondent to use its marks or act on behalf of Complainant for any purpose. Internet users have been confused as to whether Respondent’s web site is connected with Complainant. Thus Respondent’s purpose is clearly illegitimate.
The above use by Respondent of Complainant makes it clear Respondent had actual knowledge of Complainant’s rights and has used the Domain Name to engage in impersonation, phishing and fraud which is evidence of bad faith registration and use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the registered trade mark AIRBNB, inter alia in the USA for on line services related to rental of property with first use in commerce shown as 2009. Complainant’s main web site is at airbnb.com. Complainant also has, inter alia, registrations in the USA for its logo known as the Belo logo with first use shown as 2014. Complainant uses a corporate colour known as ‘Rausch’.
The Domain Name registered in 2017 has been used for a web site using Complainant’s name, Belo logo and ‘Rausch’ corporate colouring to collect information from customers in relation to a non existent IPO.
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 or Confusingly Similar
The Domain Name consists of Complainant's AIRBNB mark (which is registered in the USA for online services relating to property and has been used since 2009), a hyphen, the generic acronym ‘IPO’ meaning ‘initial public offering’ and the gTLD .com.
The addition of a generic term ‘IPO’ does not serve to distinguish the Domain Name from Complainant’s AIRBNB mark. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4 (a) (i). ) Nor does the addition of a hyphen. See Health Devices Corp. v Aspen STC, FA 158254 (Forum July , 2003)(The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4 (a)(i). )
The gTLD .com 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 holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that Respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that Complainant had not licensed or authorized Respondent to use its ALASKA AIRLINES mark).
The web site to which the Domain Name redirected purported to offer financial services in competition with those of Complainant and sought to collect personal information from users. It appeared to be a site associated with Complainant using its Belo logo and ‘Rausch’ corporate colouring and does not make it clear that there is no commercial connection with Complainant. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services or a legitimate fair non commercial use. (See DaVita Inc. v Cynthia Rochelo FA 1738034 (Forum July 20, 2017) finding that ‘Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate non commercial or fair use’.)
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
The use of Complainant’s name, Belo logo and corporate colouring by Respondent on the web site attached to the Domain Name shows that Respondent was aware of Complainant and its business at the time of registration.
Attracting Internet users with a misleading web site in furtherance of a phishing scheme evinces bad faith registration and use. See Wells Fargo & Co. v Mihael, FA 605221 (Forum Jan. 16, 2006)(finding that resolving a disputed domain name to a misleading page to obtain customers’ account information constitutes bad faith registration and use pursuant to 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 and has satisfied the third limb of the Policy under para 4 (b)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ipo-airbnb.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 23, 2018
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