Expedia, Inc. v. HeavenDomains Company
Claim Number: FA0612000873343
Complainant is Expedia, Inc. (“Complainant”), represented by Sanjiv
D. Sarwate, of Pattishall, McAuliffe, Newbury, Hilliard
& Geraldson LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <expidia.net>, registered with Fabulous.Com Pty Ltd.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 29, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 18, 2007 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@expidia.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <expidia.net> domain name is confusingly similar to Complainant’s EXPEDIA mark.
2. Respondent does not have any rights or legitimate interests in the <expidia.net> domain name.
3. Respondent registered and used the <expidia.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Expedia Inc., holds many trademark
registrations with the United States Patent and Trademark Office (“USTPO”) for
the EXPEDIA mark (i.e. Reg. No. 2,633,295 registered on
Respondent registered the <expidia.net> domain
name on
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 established rights to the EXPEDIA mark
through registration of the mark with the USPTO. See Innomed
Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
Respondent’s <expidia.net>
domain name is confusingly similar to Complainant’s EXPEDIA mark
because Respondent’s domain name misspells Complainant’s mark, using an “i”
instead of an “e,” in order to capitalize on a common mistake made by Internet
users attempting to enter Complainant’s domain name into their web
browser. The Panel finds that this
misspelling constitutes typosquatting which does not alter the mark
sufficiently to negate the confusingly similar aspects of Respondents domain
name under Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA
97075 (Nat. Arb. Forum
Further, Respondent’s <expidia.net>
domain name is confusingly similar
because the pronounciation is similar to Complainant’s EXPEDIA mark. The Panel finds that this phonetic similarity
is likely to result in confusion for Internet users under Policy ¶ 4(a)(i). See YAHOO!
Inc. v. Murray, D2000-1013 (WIPO
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
By asserting that Respondent has no rights or legitimate
interests in the <expidia.net> domain name, Complainant has made a prima
facie case. Therefore, the burden
shifts to Respondent to prove that it does have rights or legitimate interes
pursuant to Policy ¶ 4(a)(ii). The Panel
assumes that Respondent does not have rights or legiimate interests in the
disputed domain name where Respondent fails to respond to the Complaint. See G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum
Complainant alleges that
Respondent is using the <expidia.net> domain name to redirect Internet users to
Respondent’s website displaying links to Complainant’s competitors. Respondent’s use of the domain name to
display competitors’ links is not a use in connection with a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i)
or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See TM Acquisition Corp.
v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding
that the respondent’s diversionary use of the complainant’s marks to send
Internet users to a website which displayed a series of links, some of which
linked to the complainant’s competitors, was not a bona fide offering of
goods or services); see also Coryn Group, Inc. v.
Media Insight, FA 198959 (Nat. Arb. Forum
Dec. 5, 2003) (finding that the respondent was not using the domain names for a
bona fide offering of goods or services nor a legitimate noncommercial
or fair use because the respondent used the names to divert Internet users to a
website that offered services that competed with those offered by the
complainant under its marks).
Additionally, Respondent has
offered no evidence and no evidence is present in the record suggesting that
Respondent is commonly known by the <expidia.net>
domain name. Respondent’s WHOIS information identifies the
Respondent as “HeavenDomains Company.”
As a result, Respondent has failed to establish the rights or legitimate
interests in the <expidia.net> domain name under Policy ¶
4(c)(ii). See Gallup, Inc. v.
Amish Country Store, FA 96209 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent has registered and is using the <expidia.net> domain name, which is confusingly similar to Complainant’s EXPEDIA mark,
in order to redirect Internet users to Respondent’s website offering links to
Complainant’s competitors. The Panel
finds that such use constitutes disruption of Cmoplainant’s business and is
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (
Further, Respondent is using the <expidia.net> domain name to redirect Internet users to who misspell Complainant’s mark to its own website. The Panel finds that Respondent’s use of the <expidia.net> domain name constitutes typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”); see also 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)).
Respondent is using the <expidia.net>
domain name to redirect confused Internet users to Respondents website offering
links to competing goods and services.
Presumably, Respondent is profiting from this confusion. The Panel finds that Respondent’s use of <expidia.net>
domain name to offer competing goods and services constitutes bad faith
registration and use under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding
bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved
to a website that offered links to third-party websites that offered services
similar to the complainant’s services and merely took advantage of Internet
user mistakes); see also Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad
faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name
resolved to a website that offered similar products as those sold under the
complainant’s famous mark).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <expidia.net> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon Panelist
Dated: February 5, 2007
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