Airbnb, Inc. v. Martin Merllin
Claim Number: FA1806001791386
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Martin Merllin (“Respondent”), Missouri, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnb.casa>, registered with NameCheap, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 13, 2018; the Forum received payment on June 13, 2018.
On June 13, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <airbnb.casa> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 June 14, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 5, 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.casa. Also on June 14, 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 July 9, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it provides 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 has rights in the AIRBNB mark based on registration of the mark in the United States in 2010. It uses that mark to market its services.
Complainant alleges that the disputed domain name is identical or confusingly similar to Complainant’s AIRBNB mark as it incorporates the mark in its entirety and is differentiated only by the addition of the “.casa” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the AIRBNB mark in any manner. 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. The disputed domain name does not resolve to an active website. Further, Respondent uses the disputed domain name as part of a fraudulent phishing scheme to obtain customer information and to induce customers to transfer money to Respondent by impersonating Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. 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. Respondent creates this confusion in furtherance of a phishing scheme to obtain customer information by impersonating Complainant to fraudulently obtain customers’ personal information and to induce customers to transfer money to Respondent. Further, Respondent clearly had actual knowledge of Complainant’s rights in the AIRBNB mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark AIRBNB and uses it to provide a community marketplace for people to list, discover, and book unique accommodations around the world.
Complainant’s rights in its mark date back to 2010.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent uses the disputed domain name to create e-mail addresses that are used to attempt to obtain users’ personal information.
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 disputed domain name is identical to Complainant’s AIRBNB mark because it incorporates the mark in its entirety and is differentiated only by the addition of the “.casa” gTLD. The addition of a gTLD does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.”). Therefore, the Panel finds that the disputed domain name is identical to the AIRBNB mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its mark in any way. Respondent 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 Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum Jul. 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 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).”). Here, the WHOIS information lists the registrant as “Martin Merllin.” The Panel therefore finds that Respondent has not been commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name is being used as part of fraudulent phishing scheme to obtain customer information and to induce to customers to transfer money to Respondent by impersonating Complainant. Specifically, Complainant provides screenshots of listings on its website in which e-mails using the disputed domain name are used to request information from users. Using a domain name to engage in illegal phishing activity is generally not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent lacked rights and legitimate interests in a domain name with which it conducted a phishing scheme to procure “Internet users’ personal information”). The Panel therefore finds that Respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) or (iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name for a fraudulent phishing scheme to obtain customer information. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain through a fraudulent scheme can evince bad faith under Policy ¶ 4(b)(iv). See also Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Accordingly, the Panel finds that Respondent attempts to benefit fraudulently off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Further, Respondent had actual knowledge of Complainant’s rights in the AIRBNB mark at the time of registering the disputed domain name. Respondent’s use of the disputed domain name to create misleading e-mail addresses which are used in listings on Complainant’s website shows that Respondent must have known about Complainant’s rights in the AIRBNB mark when registering the disputed domain name. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and it finds that this constitutes bad faith under 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.casa> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 9, 2018
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