Skyscanner Limited v. Nitish Gupta / Aeromax travels private limited
Claim Number: FA2001001880602
Complainant is Skyscanner Limited (“Complainant”), represented by Nick Bowie of Keltie LLP, United Kingdom. Respondent is Nitish Gupta / Aeromax travels private limited (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <skyscaner.us>, 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.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 27, 2020; the Forum received payment on January 27, 2020.
On January 27, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <skyscaner.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On January 28, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 18, 2020 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@skyscaner.us. Also on January 28, 2020, 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.
On January 31, 2020, Respondent replied to a Forum email with a statement that is not considered a Response in this case and so the Forum transmitted to the parties a Notification of Respondent Default.
On February 24, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven M. Levy, 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the National Arbitration 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, Skyscanner Limited., provides travel information and arrangement services via an Internet website. Complainant has rights in the SKYSCANNER mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) dating to 2007. Respondent’s <skyscaner.us> domain name, registered on December 12, 2019, is identical and/or confusingly similar to Complainant’s mark, as Respondent merely removes a letter “n” in the SKYSCANNER mark.
Respondents has no rights or legitimate interests in the <skyscaner.us> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent fails to make an active use of the disputed domain name.
Finally, Respondent registered or uses the <skyscaner.us> domain name in bad faith. Respondent is seeking commercial gain by creating a likelihood of confusion with Complainant's mark. Respondent registered the disputed domain name to make money from it. The actual way in which it would do so is not clear. It may intend to sell the disputed domain name to the Complainant, a competitor or a critic. Alternatively, it may intend to set up its own flight fare aggregator. Based on the fact that the Respondent refers to itself as ‘Aeromax Travels Private Limited’, it is highly likely that the Respondent intends to use the Domain Name in connection with the travel industry. In addition, the disputed domain name does not resolve to an active website. Finally, Respondent had actual knowledge of Complainant’s rights in the SKYSCANNER prior to the registration of the disputed domain name due to the famous nature of the mark.
B. Respondent
On January 31, 2020, in response to the January 28, 2020 Written Notice of the Complaint email from the Forum, the Respondent replied to such email stating “I bought this domain because it was available, if you are that big brand so you could have bought it. If you want i can come to USA and get this thing sought. Thanks, Nitish”.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is being used by Respondent in bad faith.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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”).
Complainant claims rights in the SKYSCANNER mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”). Registration with the USPTO is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”) Therefore, the Panel finds that the Complainant has rights in the SKYSCANNER mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <skyscaner.us> domain name is identical and/or confusingly similar to Complainant’s mark, as Respondent merely removes the letter “n” in the SKYSCANNER mark. Additionally, although uncontended, Respondent adds the “.us” country-code top-level domain (“ccTLD”). The removal of a single letter and the addition of a ccTLD to a complainant’s mark may not overcome a finding of confusingly similarity under Policy ¶ 4(a)(i). See Myspace, Inc. v. Kang, FA 672160 (Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity); see also Farouk Systems, Inc. v. Jack King / SLB, FA 1618704 (Forum June 19, 2015) (finding, “The ccTLD ‘.us’ designation is inconsequential to a Policy ¶ 4(a)(i) analysis.”). Therefore, the Panel finds that Respondent’s <skyscaner.us> domain name is confusingly similar to Complainant’s SKYSCANNER mark under 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). Should it succeed in this effort, the burden then shifts to Respondent to show that 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”).
The Panel finds that there is nothing in the available evidence which indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)). Therefore, this Panel concludes that Respondent does not benefit from Policy ¶ 4(c)(i).
Complainant argues that Respondent has no rights or legitimate interests in the <skyscaner.us> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed or authorized by the Complainant to use Complainant’s SKYSCANNER mark. In considering this issue, relevant WHOIS information can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent lacks rights or legitimate interest in a disputed domain name. See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.). The WHOIS record, a screenshot of which has been submitted into evidence by Complainant, identifies the Respondent as “Nitish Gupta / Aeromax travels private limited” and no information in the record indicates that Respondent is known otherwise or that it is authorized to use Complainant’s mark. Therefore, the Panel finds that Respondent has no rights or legitimate interests in the <skyscaner.us> domain name as Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii).
Next, Complainant argues that Respondent fails to use the <skyscaner.us> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) or (iv). Rather, Respondent inactively holds the disputed domain name. Inactively holding a disputed domain name may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) or (iv). See Nutri/System IPHC, Inc. v. Usama Ayub, FA1725806 (Forum June 5, 2017) (holding that “Respondent does not use the <nutrisystemturbo.us> domain name for a bona fide offering of goods or services because the domain name resolves to a website that currently is designated as ‘under construction.’”) Here, Complainant alleges that the <skyscaner.us> domain name does not resolve to any website and further ponders how the Respondent could use the disputed domain name legitimately within the travel service sector. As the name of Respondent’s organization is “Aeromax travels private limited”, the Panel agrees that it is more likely than not that Respondent is engaged in the travel industry. Further, the disputed domain name is made up the terms “sky” and “scaner” with the latter not functioning as a proper word although it is, as claimed by Complainant, a mis-spelling of the word “scanner” as used in Complainant’s mark. Therefore, in the absence of any explanation from the Respondent, the Panel finds that Respondent has failed to rebut the Complainant’s prima facie case that no bona fide offering of goods or services or a legitimate noncommercial or fair use under is made of the disputed domain name under Policy ¶¶ 4(c)(ii) or (iv).
Complainant asserts that Respondent had knowledge of Complainant’s rights in the SKYSCANNER mark at the time of registering the <skyscaner.us> domain name. Actual knowledge of a complainant’s mark can serve as a solid foundation upon which to build a case of bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). To support this assertion, Complainant has submitted evidence of news stories focusing on its SKYSCANNER service and of the traffic/engagement ranking of its skyscanner.net website (No. 1,671 worldwide). It also points out that, based upon the name mentioned in the WHOIS record, Respondent appears to be involved with and thus familiar with the travel industry. As such, the Panel finds that Complainant has submitted sufficient evidence that Respondent had actual knowledge of Complainant’s right in its mark and Respondent has not submitted any statement or evidence to rebut this.
Complainant also argues that Respondent registered and uses the <skyscaner.us> domain name in bad faith. It asserts that Respondent fails to make an active use of, and is passively holding the disputed domain name. Failure to make an active use of a domain name is often recognized as evidence of bad faith under Policy ¶ 4(a)(iii). See Marsh Supermarkets Company, LLC, formerly known as Marsh Supermarkets, Inc. v. Choi Sungyeon, FA 1532854 (Forum February 25, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <marshsupermarkets.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because Respondent has failed to make an active use of the disputed domain name.”). As noted previously, Complainant asserts that the disputed domain name does not resolve to any website and the Panel has confirmed this through its own attempt at browsing to the <skyscaner.us> name. In light of this fact, the fame of the SKYSCANNER mark, and the apparent involvement of Respondent in the travel industry, the Panel finds it unlikely that a good faith use of the disputed domain name could be made by Respondent. As such, Respondent’s inactive use of the disputed domain name indicates bad faith registration and use per Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <skyscaner.us> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: February 25, 2020
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