Airbnb, Inc. v. Leivur Justinussen
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, United States. Respondent is Leivur Justinussen (“Respondent”), Faroe Islands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnb.vote> (‘the Domain Name’), registered with Tucows Domains Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or 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 December 2, 2019; the Forum received payment on December 2, 2019.
On December 03, 2019, Tucows Domains Inc. confirmed by e-mail to the Forum that the <airbnb.vote> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 December 3, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 23, 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@airbnb.vote. Also on December 3, 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 December 26, 2010 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 summarised as follows:
The Complainant owns the well known AIRBNB mark registered, inter alia in the United States and used since 2009 in relation to on line booking of accommodation services. It also owns airbnb.com.
The Domain Name registered in 2019 wholly incorporates the Complainant’s mark. The use of the gTLD “.vote” does not distinguish the Domain Name from the Complainant’s mark being merely a technical function of the Domain Name.The Domain Name is therefore identical to the Complainant’s mark for the purposes of the Policy.
The Domain Name has not been used except to offer the Domain Name for sale.
Respondent has no rights or legitimate interests in the Domain Name. It currently does not resolve to a web site and has not been used for the bona fide offering of goods and services or a legitimate non commercial or fair use. Respondent is not commonly known by the Domain Name. Complainant has not authorised the Respondent to use the Complainant’s mark.
The Respondent has registered and used the Domain Name in bad faith and has sought to sell the domain name for a sum in excess of out of pocket registration costs in e mail with the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the well known AIRBNB mark registered, inter alia in the United States and used since 2009 in relation to on line booking of accommodation services. It also owns airbnb.com.
The Respondent has sought to sell the Domain Name registered in 2019 to the Complainant for a sum well in excess of out of pocket expenses.
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 AIRBNB mark (registered, inter alia, in the USA for on line services relating to accommodation with first use recorded as 2009) and the gTLD “.vote.”
The gTLD “.vote” does not serve to distinguish the Domain Name from the Complainant’s AIRBNB mark under the Policy. 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 identical to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorised 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 Domain Name is currently inactive and has been offered for sale to the Complainant for a sum well in excess of costs of registration. See Hewlett-Packard Co. v Shemesh, FA 434145 (Forum April 20, 2005)(Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i)). An offer to sell a domain name can be indicative of a lack of rights and legitimate interests. See Twentieth Century Fox Film Corporation v. Diego Ossa, FA1501001602016 (Forum Feb. 26, 2015).
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
Respondent asked the Complainant to make an offer for the Domain Name in response to a cease and desist letter from the Complainant. The Complainant offered $100 and then $500 for transfer of the Domain Name which contains the Complainant’s trade mark and is not composed of generic terms. Respondent stated Complainant’s offer was not high enough stating “there is two or three zeros missing in your offer.” A respondent’s counteroffer in excess of out-of-pocket costs is evidence of bad faith pursuant to Policy ¶ 4(b)(i). See Galvanize LLC, dba Galvanize v. Brett Blair / ChristianGlobe Network, FA1405001557092 (Forum June 26, 2014) (finding that the respondent registered and used the disputed domain name in bad faith under Policy ¶ 4(b)(i) because it countered Complainant’s offer to buy the disputed domain name with an offer to sell the disputed domain name of $100,000.)
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 Policy 4 ¶ (b)(i).
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.vote> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 27, 2019
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