trivago GmbH v. Limber di Gladio Paolo Ditta Individuale
Claim Number: FA1709001747371
Complainant is trivago GmbH (“Complainant”), represented by David M. Kelly of Kelly IP, LLP, District of Columbia, USA. Respondent is Limber di Gladio Paolo Ditta Individuale (“Respondent”), Italy.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <trivago.cloud>, registered with Tucows Domains 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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 1, 2017; the Forum received payment on September 1, 2017.
On September 05, 2017, Tucows Domains Inc. confirmed by e-mail to the Forum that the <trivago.cloud> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. 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 September 6, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 26, 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@trivago.cloud. Also on September 6, 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 September 29, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 offers and provides a global hotel search platform to search and compare hotels. Complainant holds the TRIVAGO mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,069,216, registered Dec. 13, 2011). Respondent’s <trivago.cloud> is identical and confusing similar to the TRIVAGO mark because it incorporates the mark in its entirety and merely adds the “.cloud” generic top level domain (“gTLD”).
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has never been commonly known by the disputed domain name. Respondent’s attempts to attract users from Complainant’s business to an unrelated page does not constitute a bona fide offer of goods or services nor a legitimate noncommercial or fair use.
Respondent registered and is using the disputed domain name in bad faith. Respondent intentionally attracted users for commercial gain by creating confusion as to the source, affiliation, or sponsorship of the content on the resolving website. Respondent has disrupted Complainant’s business by diverting users looking for Complainant’s hotel search services to its own commercial website. Respondent knew of the TRIVAGO mark and took advantage of the mark’s goodwill when it registered and subsequently used the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <trivago.cloud> 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."
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.”).
Complainant offers and provides a global hotel search platform to search and compare hotels. Complainant holds the TRIVAGO mark with the USPTO. (e.g., Reg. No. 4, 069,216, registered November 25, 2010). The consensus among panels is that a registered trademark demonstrates Complainant’s rights to the mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). The Panel finds Complainant has rights to the TRIVAGO mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant first asserts Respondent is not commonly known by the disputed domain name. Complainant argues Respondent is not known by <trivago.cloud> because the WHOIS information of record identifies Respondent as “Limber di Gladio Paolo Ditta Individuale.” Complainant further argues there is no other evidence to suggest Respondent has been known by the disputed domain name. The Panel finds Respondent is not commonly known by the disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”).
Next, Complainant asserts Respondent has failed to make a bona fide offer of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Complainant argues Respondent’s disputed domain resolves to a commercial website unrelated to Complainant’s business. Use of a disputed domain name to resolve to a respondent’s own commercial website is not a bona fide offer and is not a noncommercial or fair use under the Policy. See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”). Therefore, the Panel finds Respondant does not have rights under Policy ¶ 4(c)(i) and (iii).
Complainant has proved this element.
Complainant first asserts Respondent registered and is using <trivago.cloud> in bad faith because Respondent has disrupted Complainant’s business. Complainant argues the disputed domain name competes with Complainant for Internet traffic by creating confusion with the use of the TRIVAGO mark. Complainant further argues that while Respondent does not compete with Complainant by offering hotel search services, Respondent has diverted customers away from Complainant. A finding of bad faith per Policy ¶ 4(b)(iii) is typically founded on use of a disputed domain name to compete with a complainant’s business. See I Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”). The Panel finds Complainant’s argument compelling that Respondent’s diversion of potential customers amounts to competing use and that Respondent has demonstrated Policy ¶ 4(b)(iii) bad faith.
Additionally, Complainant asserts Respondent intentionally registered <trivago.cloud> in order to create confusion as to source, affiliation, or sponsorship by Complainant. Complainant infers Respondent’s attempts to profit from the goodwill associated with the TRIVAGO mark demonstrates bad faith. The Panel finds that the use of the TRIVAGO mark shows Respondent registered <trivago.cloud> to create this confusion. See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). The disputed domain name resolves to Respondent’s own website where it offers commercial services. The Panel finds Complainant has satisfied Policy ¶ 4(b)(iv).
Finally, Complainant asserts Respondent had actual knowledge of the TRIVAGO mark at the time it registered and subsequently used the disputed domain name. Complainant argues Respondent had actual knowledge because the mark is famous in Respondent’s country of Italy and around the world. Complainant further argues Respondent registered <trivago.cloud> because Respondent could profit from the goodwill associated with the TRIVAGO mark. The Panel finds Respondent had actual knowledge of the mark and opportunistically registered the disputed domain name. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <trivago.cloud> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: October 2, 2017
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