Wanderlust Holdings LLC v. Wanderlust Travel
Claim Number: FA1706001736203
Complainant is Wanderlust Holdings LLC (“Complainant”), represented by Amy G. Marino of Williams Mullen, Virginia, USA. Respondent is Wanderlust Travel (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <wanderlust.blue> and <wanderlustweekly.org>, registered with Tucows Domains Inc.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 16, 2017; the Forum received payment on June 16, 2017.
On July 6, 2017, Tucows Domains Inc. confirmed by e-mail to the Forum that the <wanderlust.blue> and <wanderlustweekly.org> domain names are registered with Tucows Domains Inc. and that Respondent is the current registrant of the names. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 July 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 27, 2017 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@wanderlust.blue and postmaster@wanderlustweekly.org. Also on July 7, 2017, 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 July 31, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 is an entertainment and recreation company that provides health, travel, exercise, and food and beverage related goods and services. Complainant uses the WANDERLUST mark in conjunction with its business practices. Complainant registered the WANDERLUST mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,880,423; registered Nov. 23, 2010). See Compl., at Attached Ex. 2. Respondent’s <wanderlust.blue> and <wanderlustweekly.org> are confusingly similar to Complainant’s WANDERLUST mark because they incorporate the mark in its entirety, adding the generic term “weekly” and the “.org” or “.blue” top-level domains (“TLDs”).
Respondent does not have rights or legitimate interests in <wanderlust.blue> and <wanderlustweekly.org>. Respondent is not commonly known by the disputed domain names. Complainant has not authorized or licensed Respondent to use the WANDERLUST mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domains. Respondent’s <wanderlust.blue> and <wanderlustweekly.org> resolve to websites attempting to pass off as Complainant to engage in fraudulent advertising activity. See Compl., at Attached Ex. 4.
Respondent registered and is using <wanderlust.blue> and <wanderlustweekly.org> in bad faith. The disputed domain names create a confusion that Respondent is affiliated with Complainant for Respondent’s commercial gain. Additionally, Respondent attempts to pass itself off as Complainant to engage in fraudulent activity where Complainant’s clients pay Respondent money to advertise on <wanderlust.blue> and <wanderlustweekly.org>. See Compl., at Attached Ex. 5.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered <wanderlust.blue> on October 25, 2016, and <wanderlustweekly.org> on December 19, 2016.
The Panel finds that the disputed domain names are confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain names; and that Respondent has engaged in bad faith use and registration of the disputed domain names.
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 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.”).
The Panel finds that the disputed domain names, <wanderlust.blue> and <wanderlustweekly.org>, are confusingly similar to Complainant’s valid and subsisting trademark, WANDERLUST. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain names by merely adding the generic words “weekly” and g TLD “.org” and “.blue” to the trademark. This is insufficient to distinguish the disputed domain names from Complainant’s trademark.
As such, the Panel finds that the disputed domain names are confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain names. Respondent has no apparent license or authority to register the disputed domain names. Respondent is not commonly known by the disputed domain names.
Respondent also apparently has not made a bona fide offering of goods or services or a legitimate non-commercial or fair use of the disputed domain names. The disputed domain names resolve to websites attempting to pass themselves off as Complainant to engage in fraudulent advertising activity. See Compl., at Attached Ex. 4. Passing oneself off as Complainant using confusingly domain names that are confusingly similar to Complaint’s trademark is not a bona fide offering of goods or services or a legitimate non-commercial or fair use.
As such, the Panel finds Respondent is not using the disputed domain names for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii) and, therefore, has no rights or legitimate interests in or to the disputed domain names.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain names. Respondent uses the disputed domain names to pass itself off as Complainant to induce Complainant’s clients to pay for advertising space on the websites. See Compl., at Attached Ex. 4–5. The disputed domain names create a confusion that Respondent is affiliated with Complainant. Furthermore, Respondent’s attempts to pass itself off as Complainant to engage in fraudulent activity where Complainant’s clients pay Respondent money to advertise on the disputed domain names evinces bad faith under the Policy. Therefore, the Panel finds bad faith registration and use pursuant to Policy ¶4(b)(iv) because “[R]espondent is appropriating [C]omplainant’s mark in a confusingly similar domain name for commercial gain.” DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005).
Complainant also argues that Respondent has incorporated false WHOIS information which also bears on Respondent’s bad faith. Panels have found bad faith where evidence suggests falsity of WHOIS information. See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”). Complainant relies on the WHOIS information which indicates “Wanderlust Travel” as registrant, and that Complainant’s Google searches turned up no evidence of such an entity. Based on these contentions, the Panel finds that Respondent has engaged in bad faith by registering false WHOIS information.
Finally, the Panel finds that Respondent had actual knowledge of Complaint’s prior rights and interests in and to the trademark WANDERLUST. Given the totality of the circumstances, including Respondent attempts to avoid detection, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <wanderlust.blue> and <wanderlustweekly.org> domain names transferred from Respondent to Complainant.
Kenneth L. Port. Panelist
Dated: August 2, 2017
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