Hotwire, Inc. v. Lauren Richmond
Claim Number: FA0606000741899
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 Lauren Richmond (“Respondent”), 118 Water St., Denver, CO 34041.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <whotwire.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.
Bruce E. Meyerson 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 <whotwire.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@whotwire.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 1, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 <whotwire.com> domain name is confusingly similar to Complainant’s HOTWIRE mark.
2. Respondent does not have any rights or legitimate interests in the <whotwire.com> domain name.
3. Respondent registered and used the <whotwire.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hotwire, Inc., provides online travel agency services that include the reservation and purchase of airline tickets, hotel rooms, rental cars and vacation packages from its website accessed from the <hotwire.com> domain name. Complainant holds numerous registrations with the United States Patent and Trademark Office, including the HOTWIRE mark (Reg. No. 2,681,692 issued January 28 2003) in connection with its online travel agency services.
Respondent registered the <whotwire.com> domain
name on May 21, 2004. The disputed
domain name resolves to a holding page that features a search engine.
Respondent has never been authorized by Complainant to use its mark in a domain
name.
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. 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 established rights in the HOTWIRE mark through registration with the USPTO. Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”).
The <whotwire.com> domain name contains Complainant’s mark in its entirety and adds a “w” and a generic top-level domain (“gTLD”). The Panel finds that the addition of a single letter to Complainant’s mark and the addition of a gTLD does not sufficiently differentiate the disputed domain name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). Accordingly, the Panel finds the disputed domain name to be confusingly similar to Complainant’s mark when viewed in the light of Policy ¶ 4(a)(i). See America Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that <oicq.net> and <oicq.com> are confusingly similar to the complainant’s mark, ICQ); see also State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to the complainant’s STATE FARM mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant bears the initial burden of proof to show that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant establishes a prima facie showing that Respondent lacks rights and legitimate interests, the burden shifts to Respondent to prove the contrary pursuant to Policy ¶ 4(a)(ii). 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 respond to the Complaint creates a
presumption that Respondent lacks rights and legitimate interests in the
disputed domain name. Do the Hustle,
LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a
respondent to come forward to [contest complainant’s allegations] is tantamount
to admitting the truth of complainant’s assertions in this regard.”); see
also American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on
Respondent's failure to respond, it is presumed that Respondent lacks all
rights and legitimate interests in the disputed domain name.”). Nonetheless, the Panel chooses to analyze
the record to determine if Respondent has rights or legitimate interests in the
disputed domain name.
Complainant asserts that Respondent is not commonly known by the disputed domain name. According to the WHOIS database, the <whotwire.com> domain name was registered by “Lauren Richard” of Denver, Colorado. Because there is no evidence in the record to suggest otherwise, the Panel finds that Respondent is not commonly known by the disputed domain name. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name”); 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).
Furthermore, Complainant asserts that
Respondent is not using the domain name to make a bona fide offering of
goods or services or for a legitimate noncommercial use. Complainant makes an uncontested assertion
that the disputed domain resolves to a holding page that features a search
engine from which Respondent presumably receives commercial benefit. The Panel finds that Respondent’s use of the
disputed domain name to resolve to a holding website that features a search
engine does not amount to a bona fide offering or goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial use pursuant to
Policy ¶ 4(c)(iii). See Pioneer
Hi-Bred Int’l Inc. v. Chan, FA 154119 (Nat. Arb. Forum May 12, 2003)
(finding that the respondent did not have rights or legitimate interests in a
domain name that used the complainant’s mark and redirected Internet users to a
website that pays domain name registrants for referring those users to its
search engine and pop-up advertisements); see also Trans
Global Tours, LLC v. Yong Li, FA 196166
(Nat. Arb. Forum Nov. 1, 2003) (finding that the respondent was not using the
domain name for a bona fide offering of goods or services or a
legitimate noncommercial or fair use because it was diverting Internet users to
a search engine with pop-up advertisements).
The Panel
finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant asserts that Respondent has registered and used
the disputed domain name in bad faith.
The Panel finds that Respondent’s use of the confusingly similar domain
name to redirect Internet users to a holding page will likely cause confusion
as to Complainant’s sponsorship of or affiliation with the resulting
website. Furthermore, the Panel
reasonably presumes that Respondent is receiving commercial gain for the
redirection to the holding page that features a search engine. Accordingly, the Panel concludes that
Respondent registered and used the disputed domain name in bad faith pursuant to
Policy ¶ 4(b)(iv). Bank of Am. Corp.
v. Out Island Props., Inc., FA 154531 (Nat. Arb. Forum June 3, 2003)
(stating that “[s]ince the disputed domain names contain entire versions of
Complainant’s marks and are used for something completely unrelated to their
descriptive quality, a consumer searching for Complainant would become confused
as to Complainant’s affiliation with the resulting search engine website”); see also H-D Michigan, Inc. v.
Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the
disputed domain name was registered and used in bad faith pursuant to Policy ¶
4(b)(iv) through the respondent’s registration and use of the infringing domain
name to intentionally attempt to attract Internet users to its fraudulent
website by using the complainant’s famous marks and likeness).
Furthermore, the Panel finds that Respondent’s registration and use of a domain name that encompasses a common typographical error of Complainant’s HOTWIRE mark evidences typosquatting and therefore bad faith under Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii); see also K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <whotwire.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson Panelist
Dated: August 11, 2006
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