Airbnb, Inc. v. khaled salem
Claim Number: FA1804001784212
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is khaled salem (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnbplus.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 30, 2018; the Forum received payment on April 30, 2018.
On April 30, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <airbnbplus.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 May 1, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 21, 2018 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@airbnbplus.com. Also on May 1, 2018, 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 May 29, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <airbnbplus.com> domain name is confusingly similar to Complainant’s AIRBNB mark.
2. Respondent does not have any rights or legitimate interests in the <airbnbplus.com> domain name.
3. Respondent registered and uses the <airbnbplus.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Airbnb, Inc., offers worldwide accommodations online. Complainant holds registrations for the AIRBNB mark around the world, including with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,890,025 registered Dec. 14, 2010).
Respondent registered the <airbnbplus.com> domain name on April 25, 2015, and uses it to redirect Internet users to a parked paged with unrelated hyperlinks, one of which reads “Buy this domain.”
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 Complainant has established rights in the AIRBNB mark pursuant to Policy ¶ 4(a)(i) through its worldwide registrations, including with the USPTO. See Fossil Group, Inc. v. wuruima wu, FA 1544486 (Forum Mar. 21, 2014) (holding, “Complainant’s registration of the FOSSIL mark with trademark agencies worldwide, including the USPTO and SAIC, establishes Complainant’s rights in the FOSSIL mark pursuant to Policy ¶ 4(a)(i).”).
Respondent’s <airbnbplus.com> domain name simply adds a generic term and gTLD to Complainant’s AIRBNB mark. These changes do not distinguish the disputed domain name from Complainant’s mark. See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”); see also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Consequently, the Panel finds that Respondent’s <airbnbplus.com> domain name is confusingly similar to Complainant’s mark AIRBNB mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant asserts that Respondent has no rights or legitimate interests in the <airbnbplus.com> domain name. Respondent is not permitted, licensed, or authorized to use Complainant’s AIRBNB mark. Complainant provides a copy of the relevant WHOIS information, which identifies Respondent as “khaled salem.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant contends that Respondent does not use the <airbnbplus.com> domain name in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Complainant provides screen shots of Respondent’s disputed domain name, which resolves to a parked paged with unrelated hyperlinks, one of which includes a link for “Buy this domain.” Clicking on that link directs Internet users to a bid page for <wawarealty.com>. Use of a disputed domain name to feature unrelated hyperlinks and to offer to sell the disputed domain name is not a bona fide offering of goods or services, or a legitimate noncommercial or fair use Policy ¶¶ 4(c)(i) and (iii). See Twentieth Century Fox Film Corporation v. Diego Ossa, FA1501001602016 (Forum Feb. 26, 2015) (“The Resolving parked page advertises the sale of the domain name with the message ‘Would you like to buy this domain?’ The Panel accepts this offer as demonstrative of Respondent’s willingness to sell the disputed domain name, and finds that such behavior provides additional evidence that Respondent lacks rights or legitimate interests in the disputed domain name.”); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Thus, the Panel finds that Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use Policy ¶¶ 4(c)(i) and (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent diverts traffic to a parked website used to offer the disputed domain name for sale, in bad faith under Policy ¶ 4(a)(iii). The Panel agrees and finds that Respondent’s failure to actively use the disputed domain name demonstrates bad faith per Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Complainant also avers that, given Complainant’s registration of the AIRBNB mark and widespread use of the mark around the world, Respondent had actual knowledge of Complainant’s rights in the mark. The Panel agrees and finds that Respondent has actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name, bad faith under Policy ¶ 4(a)(iii). 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.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <airbnbplus.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 30, 2018
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