Airbnb, Inc. v. Diana Deaconesu
Claim Number: FA1711001760165
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Diana Deaconesu (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com>, registered with GoDaddy.com, LLC.
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 November 28, 2017; the Forum received payment on November 28, 2017.
On November 29, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 30, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 20, 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@airbnb.fit, postmaster@airbnb.ski, and postmaster@offers-airbnb.com. Also on November 30, 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 December 22, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant is known worldwide for its revolutionary approach to people-powered travel and hospitality. Complainant is a trusted community marketplace for people to list, discover, and book unique accommodations around the world – online or from a mobile phone or tablet. Complainant registered the AIRBNB mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,890,025, registered Dec. 14, 2010). Respondent’s <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> domain names are identical or confusingly similar to Complainant’s mark as each consist of the AIRBNB mark verbatim and adds one of the generic top-level domains (“gTLD”) “.fit,” “.ski,” or “.com,” while the <offers-airbnb.com> domain name also adds the generic term “offers.”
Respondent has no rights or legitimate interests in the <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> domain names. Respondent is not commonly known by the domain names, as the WHOIS information lists the registrant as “Diana Deaconesu.” Complainant also has not authorized, licensed, or otherwise permitted Respondent to use the mark. Further, Respondent does not use the domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the domain names simply either resolve to a parked webpage displaying related links, or resolve to inoperative webpages. Additionally, Respondent is using email addresses associated with the domain names to impersonate Complainant in emails to Complainant’s customers, to phish for their personal information, and to defraud them by inducing them to transfer money to Respondent off Complainant’s platform in return for lodgings that, on information and belief, are nonexistent.
Respondent registered and uses the <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> domain names in bad faith. Respondent registered the domain names with Complainant’s mark in mind and with intent to cause confusion. Further, Respondent is using email addresses associated with the domain names to impersonate Complainant in emails to Complainant’s customers, to phish for their personal information, and to defraud them by inducing them to transfer money to Respondent off Complainant’s platform in return for nonexistent lodgings. Finally, in light of the fame and notoriety of Complainant’s AIRBNB mark, it is inconceivable that Respondent could have registered the disputed domain name without actual and/or constructive knowledge of Complainant’s rights in the mark.
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 <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> 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.”).
Complainant claims to have registered the AIRBNB mark with the USPTO (e.g. Reg. No. 3,890,025, registered Dec. 14, 2010). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has established rights in the AIRBNB mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> domain names are identical or confusingly similar to Complainant’s mark as each consist of the AIRBNB mark verbatim and adds one of the gTLD “.fit,” “.ski,” or “.com,” while the <offers-airbnb.com> domain name also adds the generic term “offers.” Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The <offers-airbnb.com> domain name also contains a hyphen, which similarly does not distinguish a domain name from a complainant’s mark. See Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Forum Sept. 23, 2003) (“The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.”). Accordingly, the Panel finds that the <airbnb.fit> and <airbnb.ski> domain names are identical, and the <offers-airbnb.com> domain name is confusingly similar to the AIRBNB 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 contends that Respondent has no rights or legitimate interests in the <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> domain names. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS identifies “Diana Deaconesu” as the registrant for all of the domain names. Complainant asserts that no evidence exists to show that Respondent has ever been legitimately known by the AIRBNB mark. Panels may use these assertions as evidence of lacking rights or legitimate interests. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Complainant alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the domain names prior to its registration, and Complainant has not given Respondent permission to use the domain names. Accordingly, the Panel finds that Respondent is not commonly known by the <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> domain names under Policy ¶ 4(c)(ii).
Further, Complainant argues that the <airbnb.fit> domain name resolves in a website that contains links related to Complainant or its services, presumably to commercially benefit from pay-per-click fees. Parking a domain name which offers links related to a complainant’s services does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Complainant provides a screenshot of the resolving domain, which contains links such as “Air BNB” and “Rent Vacation Home.” The Panel finds that Respondent uses the <airbnb.fit> domain name to host a parked webpage, failing to make a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Additionally, Complainant contends that the <airbnb.ski>, and <offers-airbnb.com> domain names both resolve to inactive webpages. Failure to make active use of a confusingly similar domain name can evince a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Complainant provides screenshots of the webpages associated with the above-referenced domain names, which either contain the message “Sorry! This site is not currently available” or “This site can’t be reached.” Accordingly, the Panel finds that Respondent fails to actively use the <airbnb.ski>, and <offers-airbnb.com> domain names and does not make a make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii) with the two domain names.
Finally, Complainant argues that Respondent attempts to phish for information from consumers via emails associated with the disputed domain names. Complainants may use phishing attempts to evince a failure to make a bona fide offering of goods or services or legitimate noncommercial or fair use. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Within the Complaint, Complainant provides a screenshot of the allegedly fraudulent scheme associated with the domain names, which confirms Respondent’s request for money. Accordingly, the Panel finds that Respondent uses the <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> domain names in connection with a phishing scheme and does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Complainant has proved this element.
Complainant argues that Respondent registered and uses the <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> domain names in bad faith with the intent to cause confusion for financial gain. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain). The Panel agrees that Respondent registered the domain names to commercially benefit off Complainant’s mark and finds that Respondent did so in bad faith under Policy ¶ 4(b)(iv).
Further, Complainant argues that Respondent uses email addresses associated with the domain names to impersonate Complainant in emails to Complainant’s customers, to phish for their personal information, and to defraud them by inducing them to transfer money to Respondent off Complainant’s platform in return for nonexistent lodgings. Phishing scheme through fraudulent email communications can evince bad faith under Policy ¶ 4(a)(iii). See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”). As noted in the previous section, Complainant provides an example of this communication within the Complaint, which confirms Complainant’s allegations. The Panel agrees and finds that Respondent’s phishing scheme does not amount to any good faith use per Policy ¶ 4(a)(iii).
Finally, Complainant claims that Respondent had actual or constructive knowledge of Complainant’s AIRBNB mark when registering the domain names at issue. UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the domain names and finds that actual knowledge does adequately evince bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Complainant contends that Respondent must have had actual knowledge of the mark in light of the fame and notoriety of Complainant’s AIRBNB mark. The Panel agrees with Complainant, for that reason and the use made of the domains and finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent registered and uses the <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> domain names in bad faith with the intent to cause confusion for financial gain. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain). The Panel agrees that Respondent registered the domain names to commercially benefit off Complainant’s mark and finds that Respondent did so in bad faith under Policy ¶ 4(b)(iv).
Further, Complainant argues that Respondent uses email addresses associated with the domain names to impersonate Complainant in emails to Complainant’s customers, to phish for their personal information, and to defraud them by inducing them to transfer money to Respondent off Complainant’s platform in return for nonexistent lodgings. A phishing scheme through fraudulent email communications can evince bad faith under Policy ¶ 4(a)(iii). See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”). As noted in the previous section, Complainant provides an example of this communication within the Complaint, which confirms Complainant’s allegations. The Panel finds that Respondent’s phishing scheme does not amount to any good faith use per Policy ¶ 4(a)(iii).
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 <airbnb.fit>, <airbnb.ski>, and <offers-airbnb.com> domain names be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: January 2, 2018
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