Airbnb, Inc. v. 张昕 / 何青玉
Claim Number: FA1805001786279
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is 张昕 / 何青玉 (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnb.pro>, registered with Chengdu West Dimension Digital Technology Co., 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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 11, 2018; the Forum received payment on May 11, 2018.
On May 15, 2018, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <airbnb.pro> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital Technology Co., Ltd. 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 18, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 7, 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@airbnb.pro. Also on May 18, 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 June 13, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant, Airbnb, Inc. is the owner of the exceptionally popular AIRBNB brand, known worldwide for its revolutionary approach to people-powered travel and hospitability. Complainant has rights in the AIRBNB and multiple related marks based upon its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,890,025, registered April 27, 2010). See Compl. Annex I. Respondent’s <airbnb.pro> domain name is identical to Complainant’s AIRBNB mark, as the domain name is comprised entirely of the mark and the “.pro” generic top-level domain (“gTLD”).
ii) Respondent has no rights or legitimate interests in the <airbnb.pro> domain name. Respondent is not authorized or licensed to use Complainant’s AIRBNB mark and is not commonly known by the disputed domain name. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the domain name resolves to a parked webpage with click through ads. See Compl. Annex L. Further, Respondent is using one or more e-mail addresses associated with the disputed domain name in order to pass itself off as Complainant. See Compl. Annex N. Respondent does so in an attempt to induce Complainant’s hosts to click on an intermediate link, which redirects to Complainant’s website and earns Respondent unauthorized affiliate revenue. Id.
iii) Respondent registered and is using the <airbnb.pro> domain name in bad faith. Respondent’s offer to sell the disputed domain name for the price of €9,999 far exceeds any reasonable registration costs it may have occurred and is further evidence of bad faith. Additionally, Respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Specifically, Respondent uses an associated e-mail address in order to pass off as Complainant for the purpose of gaining unauthorized affiliate revenue is evidence of its bad faith. See Compl. Annex N. Finally, in light of the AIRBNB mark’s considerable fame, Respondent’s attempts to pass of as Complainant, and Respondent’s use of the entire mark in the disputed domain name, Respondent must have had actual knowledge of Complainant’s rights in the AIRBNB mark at the time it registered the <airbnb.pro> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel notes that the Registration Agreement is written in Chinese, thereby making the language of the proceedings in Chinese. Complainant has alleged that because Respondent is conversant and proficient in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) it has the discretion to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v Onetz, FA 96196 (Forum Feb. 12, 2001 (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). Complainant contends Respondent is conversant in English based upon the fact that the disputed domain name contains Complainant’s AIRBNB mark, which is a highly distinctive term in English, and that the disputed domain name’s resolving webpage is in English. Furthermore, Complainant is based in the United States and conducts its daily operations in English; therefore, it would be “cumbersome and to [Airbnb’s] disadvantage to be forced to” conduct this proceeding in Chinese.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, in the absence of Response and no objection to the Complainant's request for the language of proceeding, the Panel decides that the proceeding should be in English.
1. Respondent registered the disputed domain name on December 15, 2014.
2. Complainant has established rights in the AIRBNB mark based upon its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,890,025, registered April 27, 2010).
3. The disputed domain name’s resolving webpage offers to sell the domain name for €9,999.
4. The disputed domain name’s resolving webpage displays pay-per-click hyperlinks.
5. An e-mail originating from an address associated with Respondent’s <airbnb.pro> domain name indicates its sender being Complainant.
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 rights in the AIRBNB mark based upon its registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in that mark per Policy ¶ 4(a)(i). 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.”). Complainant provides copies of its USPTO registration of the AIRBNB mark (e.g. Reg. No 3,890,025, registered April 27, 2010). See Compl. Annex I. The Panel therefore holds that Complainant’s registration of the AIRBNB mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next argues Respondent’s <airbnb.pro> domain name is identical to the AIRBNB mark, as the domain name is entirely comprised of the mark and the “.pro” gTLD. The addition of a gTLD to a complainant’s mark is insufficient to differentiate the domain name from said mark under Policy ¶ 4(a)(i). See Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”). Respondent’s <airbnb.pro> domain name is comprised solely of Complainant’s AIRBNB mark and the gTLD, “.pro.” Thus, the Panel determines the <airbnb.pro> domain name is identical to the AIRBNB mark per Policy ¶ 4(a)(i).
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), then 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 argues that Respondent has no rights or legitimate interests in the <airbnb.pro> domain name. Specifically, Complainant contends Respondent is not authorized or licensed to use Complainant’s AIRBNB mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name per Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). The WHOIS of record identifies Respondent as “张昕/ 何青玉,” which the Google Translate tool translates as “Zhagn Hao / He Qingyu.” See Compl. Annexes A & M. Furthermore, no information on record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel therefore finds, under Policy ¶ 4(c)(ii), that Respondent has not been commonly known by the <airbnb.pro> domain name.
Complainant argues Respondent fails to use the <airbnb.pro> domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Complainant contends the domain name resolves to a website which is being used to obtain click-through revenue by presenting sponsored links. The use of a domain name to host a page of third-party links is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) and (iii). See Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party websites is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) because the registrant presumably receives compensation for each misdirected Internet user). Complainant offers a screenshot of the <airbnb.pro> domain name’s resolving website which displays pay-per-click links. See Compl. Annex L. The Panel therefore determines that Respondent does not have rights or legitimate interests in the <airbnb.pro> domain name per Policy ¶¶ 4(c)(i) and (iii).
Complainant further contends Respondent is using one or more e-mail addresses associated with the disputed domain name in an attempt to pass itself off as Complainant. Attempts by a respondent to pass off as a complainant may evince a finding of a lack of rights and legitimate interests in a disputed domain name per Policy ¶¶ 4(c)(i) and (iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name). Complainant provides a copy of an e-mail originating from the disputed domain name which attempts to induce one of Complainant’s hosts to click on an included link. See Compl. Annex N. The Panel therefore determines that Respondent does not have rights or legitimate interests in the <airbnb.pro> domain name per Policy ¶¶ 4(c)(i) and (iii).
Complainant contends that Respondent’s bad faith is indicated by Respondent’s offer to sell the <airbnb.pro> domain name for an excess of out-of-pocket costs. Registration of a domain name with the purpose of transferring it for a profit can demonstrate bad faith pursuant to Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). Complainant provides a screenshot of the disputed domain name’s resolving webpage, where Respondent offers to sell the domain name for €9,999. See Compl. Annex L. The Panel therefore finds that Respondent registered and is using the <airbnb.pro> domain name in bad faith per Policy ¶ 4(b)(i).
Complainant next asserts that Respondent’s use of the <airbnb.pro> domain name to host pay-per-click hyperlinks in an attempt to gain commercially by creating likelihood of a confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Use of a domain name which is identical or confusingly similar to an incorporated mark in order to host third-party hyperlinks may be evidence of bad faith registration and use per Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)). Complainant provides a screenshot of the <airbnb.pro> domain name’s resolving webpage shown to be containing pay-per-click hyperlinks. See Compl. Annex L. The Panel therefore finds Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant lastly contends Respondent registered the <airbnb.pro> domain name with actual knowledge of Complainant’s rights in the mark and therefore in bad faith. Complainant bases this argument on the confusing similarity of the disputed domain name with the AIRBNB mark, Respondent’s attempts to pass off as Complainant, and the fame of Complainant’s AIRBNB mark. Use of a domain name that is confusingly similar to a complainant’s mark in attempts to pass off as the complainant may be sufficient evidence to find that the respondent had actual knowledge of the complainant’s mark at the time of the respondent’s registration of the domain name – as can the use of a famous mark in the disputed domain name. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). See also Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”). Complainant provides a copy of an e-mail originating from an address associated with Respondent’s <airbnb.pro> domain name; the sender of this e-mail claims to be Complainant. See Compl. Annex N. Complainant also provides evidence of the AIRBNB mark’s fame. See Compl. Annexes E, F, G, and H. The Panel agrees and infers Respondent had actual knowledge of Complainant’s rights in the mark and thus registered the names in bad faith per 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 <airbnb.pro> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: June 18, 2018
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