Hotwire, Inc. v. Jydrien Hensley
Claim Number: FA0606000741893
Complainant is Hotwire, Inc. (“Complainant”), represented by Sanjiv D. Sarwate, of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, 311 South Wacker Drive, Suite 5000, Chicago, IL 60606. Respondent is Jydrien Hensley (“Respondent”), 21 Locust Boulevard, Anaheim, CA 35804.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <hotwrie.com>, registered with Enom, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 29, 2006; the National Arbitration Forum received a hard copy of the Complaint on July 3, 2006.
On July 4, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <hotwrie.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On July 7, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 27, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@hotwrie.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 2, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <hotwrie.com> domain name is confusingly similar to Complainant’s HOTWIRE.COM mark.
2. Respondent does not have any rights or legitimate interests in the <hotwrie.com> domain name.
3. Respondent registered and used the <hotwrie.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hotwire, Inc., provides online travel agency services at the <hotwire.com> domain name. Complainant has continuously used the HOTWIRE and HOTWIRE.COM marks in connection with flight, hotel, rental car and other travel reservation services since 2000.
Complainant has registered the HOTWIRE and HOTWIRE.COM marks with numerous trademark authorities around the world, including the United States Patent and Trademark Office (“USPTO”) (HOTWIRE: Reg. No. 2,681,692 issued January 28, 2003; HOTWIRE.COM: Reg. No. 2,916,626 issued January 4, 2005).
Respondent registered the <hotwrie.com> domain name on May 16, 2004. Respondent’s domain name resolves to a search engine website with links to various content unrelated to Complainant.
Complainant contends that Respondent was at one time a member of its affiliate program, whereby a person can obtain a limited license from Complainant to display on their website the HOTWIRE mark and a hyperlink to Complainant’s <hotwire.com> domain name. One of the terms of Complainant’s affiliate agreement was that a person could not register a domain name containing Complainant’s mark without first obtaining approval from 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."
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(e), 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 (Nat. Arb. 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.”).
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.
Complainant has demonstrated its rights in the HOTWIRE and HOTWIRE.COM marks pursuant to Policy ¶ 4(a)(i) by registering the marks with the USPTO. See ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (concluding that the complainant demonstrated its rights in the SPORTSCENTER mark through its valid trademark registrations with the USPTO and similar offices around the world); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent lacks rights and
legitimate interests in the <hotwrie.com>
domain name. Complainant must
first make a prima facie case in support of its allegations, and then
the burden shifts to Respondent to show it does have rights or legitimate
interests pursuant to Policy ¶ 4(a)(ii).
See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct.
1, 2002) (“Because Complainant’s Submission constitutes a prima facie case
under the Policy, the burden effectively shifts to Respondent. Respondent’s
failure to respond means that Respondent has not presented any circumstances
that would promote its rights or legitimate interests in the subject domain
name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has
asserted that the respondent has no rights or legitimate interests with respect
to the domain name, it is incumbent on the respondent to come forward with
concrete evidence rebutting this assertion because this information is
“uniquely within the knowledge and control of the respondent”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <hotwrie.com> domain name. See Am. Online, Inc. v. AOL Int'l,
D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests
where the respondent fails to respond); see also BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June
20, 2000) (“By not submitting a response, Respondent has failed to invoke any
circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any
rights or legitimate interests in the domain name”). However, the Panel will now examine the
record to determine if Respondent has rights or legitimate interests under
Policy ¶ 4(c).
Respondent has registered the domain name under the name “Jydrien
Hensley,” and there is no other evidence in the record suggesting that
Respondent is commonly known by the <hotwrie.com>
domain name. Thus, Respondent
has not established rights or legitimate interests in the <hotwrie.com> domain name pursuant to
Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA
96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not
have rights in a domain name when the respondent is not known by the mark); see
also Wells Fargo & Co. v. Onlyne Corp.
Services11, Inc., FA 198969 (Nat. Arb.
Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed
domain [name], one can infer that Respondent, Onlyne Corporate Services11, is
not commonly known by the name ‘welsfargo’ in any derivation.”).
Respondent is also not using the <hotwrie.com>
domain name for a bona fide offering of goods or services under Policy ¶
4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) by
operating a web directory with links to various content unrelated to Complainant. In Charles Letts & Co Ltd. v.
Citipublications, FA 692150 (Nat. Arb. Forum Jul. 17, 2006), the panel
found that the respondent’s parking of a domain name containing the
complainant’s mark at a web directory did not satisfy Policy ¶ 4(c)(i) or ¶
4(c)(iii)), because the respondent was likely generating click-through fees for
diverting Internet users to other websites.
Because Respondent is also likely profiting from its use of the
confusingly similar <hotwrie.com> domain name, Respondent has
failed to establish rights or legitimate interests under Policy ¶ 4(c)(i) or
Policy ¶ 4(c)(iii). See Geoffrey,
Inc. v. Toyrus.com, FA 150406 (Nat. Arb. Forum Apr. 25, 2003) (holding that
the respondent’s use of the <toyrus.com> domain name, a simple
misspelling of the complainant’s mark, to divert Internet users to a website
that featured pop-up advertisements and an Internet directory, was neither a bona
fide offering of goods or services nor a legitimate noncommercial or fair
use of the domain name).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Moreover, Respondent is engaged in typosquatting, because
Internet users seeking Complainant’s HOTWIRE.COM travel agency services at the
<hotwire.com> domain name who mistakenly enter the letters “i” and “r”
backwards resolve to Respondent’s website.
Therefore, Respondent has registered and used the <hotwrie.com>
domain name to take advantage of Internet user’s typographical errors, and such
typosquatting constitutes bad faith registration and use pursuant to Policy ¶
4(a)(iii). See Myspace, Inc. v. Kang,
FA 672160 (Nat. Arb. Forum June 19, 2006)
(“Respondent misspells the Mark with intent to intercept internet users from
Complainant’s web site, given the fact that Complainant’s website is a popular
website and the Disputed Domain Name is a misspelling of the Mark which is
highly likely to occur. This
typosquatting is evidence of bad faith.”); see also Nextel Commc’ns Inc. v.
Geer, FA 477183 (Nat. Arb. Forum Jul. 15, 2005) (finding that the
respondent’s registration and use of the <nextell.com> domain name was in
bad faith because the domain name epitomized typosquatting in its purest form).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(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 <hotwrie.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 11, 2006
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