national arbitration forum

 

DECISION

 

Hotwire, Inc. v. Jydrien Hensley

Claim Number:  FA0606000741893

 

PARTIES

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.

 

PANEL

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.

 

PROCEDURAL HISTORY

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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

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.

 

FINDINGS

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.

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

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 <hotwrie.com> domain name is confusingly similar to Complainant’s HOTWIRE.COM mark under Policy ¶ 4(a)(i), because the disputed domain name contains the entire registered mark but merely transposes the letters “i” and “r.”  The Panel finds that Respondent fails to sufficiently differentiate the <hotwrie.com> domain name from the HOTWIRE.COM mark merely by inverting letters within the mark.  See Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the <wynhdam.com> and <wyandham.com> domain names to be confusingly similar to the complainant’s WYNDHAM mark because the domain names merely transposed letters in the mark); see also Delta Corporate Identity, Inc. et. Al. v. SearchTerms, FA 590678 (Nat. Arb. Forum Dec. 14, 2005) (concluding that the <dleta.com> domain name was confusingly similar to the complainant’s DELTA mark).

 

The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i). 

 

Rights or Legitimate Interests

 

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).

 

In addition, Respondent’s misspelling of Complainant’s HOTWIRE.COM mark in the <hotwrie.com> domain name suggests that Respondent has engaged in typosquatting and indicates that Respondent has no rights or legitimate interests in the disputed domain name according to Policy ¶ 4(a)(ii).  See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”). 

 

The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii). 

 

Registration and Use in Bad Faith

 

Respondent’s <hotwrie.com> domain name resolves to a web directory with links to various content unrelated to Complainant.  In Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002), the respondent registered the <bigkmart.com> domain name and was using it to operate a website featuring links to various content unrelated to the complainant.  The Panel inferred that the respondent made a profit from the amount of Internet traffic it diverted to other websites, and that therefore, the respondent was “commercially benefiting from the likelihood of confusion it has created through the use of Complainant’s mark” in violation of Policy ¶ 4(b)(iv).  Id.  In this case, Respondent is also likely collecting referral fees for diverting Internet users to third-party websites and is therefore taking advantage of the confusing similarity between the <hotwrie.com> domain name and Complainant’s HOTWIRE.COM mark in order to profit from the goodwill associated with the mark.  Such registration and use constitutes bad faith under Policy ¶ 4(b)(iv).  See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).

 

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). 

 

DECISION

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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