Expedia, Inc. v. Guneet singh
Claim Number: FA1910001867587
Complainant is Expedia, Inc. (“Complainant”), represented by David M. Kelly of Kelly IP, LLP, District of Columbia, USA. Respondent is Guneet singh (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <retroexpedia.com> (‘the Domain Name’), 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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 18, 2019; the Forum received payment on October 18, 2019.
On October 21, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <retroexpedia.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 October 22, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 12, 2019 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@retroexpedia.com. Also on October 22, 2019, 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 November 14, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark EXPEDIA registered, inter alia in the USA and India for travel agency services registered first in time as of 1996. It uses an airplane logo with a circular motif. It operates a site in India at Expedia.co.in. EXPEDIA is a well-known mark.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s EXPEDIA mark adding only the generic term ‘retro’ and the gTLD “.com” which do not prevent confusing similarity between the Domain Name and the Complainant’s mark.
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for competing travel services using an airplane logo with a circular motif which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith intentionally attracting and confusing Internet users for commercial gain and disrupting the business of a competitor.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark EXPEDIA registered, inter alia, in the USA and India for travel agency services with first registration as of 1996. It operates a site in India at Expedia.co.in.
The Domain Name registered in 2019 has been used for a site offering competing travel services.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical and/or Confusingly Similar
The Domain Name in this Complaint combines the Complainant’s EXPEDIA mark (registered, inter alia, in the USA and India for travel agency services with first registration as of 1996) the generic term ‘retro’ and the gTLD “.com.”
The addition of the generic word ‘retro’ to the Complainant’s mark does not prevent confusing similarity between the Domain Name and the Complainant’s mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i)).
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Respondent has used the site attached to the Domain Name to offer competing travel agency services. It does not make it clear that there is no commercial connection with the Complainant and uses an airplane logo with a circular motif (which the Complainant also does). The Panel finds this use is confusing. As such, it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to point to real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services).
As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The use of the Domain Name for travel agency services competing with the Complainant under a domain name containing the Complainant’s well known mark which has been used worldwide including in India makes it more likely than not that the Respondent knew about the Complainant and its business.
In the opinion of the Panelist, the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant. It is also noted that the Respondent has chosen to use an airplane logo with a circular motif (when the Complainant also uses an airplane logo with a circular motif). Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant. (See Asbury Auto Group Inc. v. Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) finding that the respondent's use of the disputed domain name to point to competing dealerships not connected with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those third party businesses and was therefore evidence of bad faith and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <retroexpedia.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: November 14, 2019
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