Trivago N.V. v. Adam Smith
Claim Number: FA2002001884021
Complainant is Trivago N.V. (“Complainant”), represented by Damon Ashcraft, Arizona, USA. Respondent is Adam Smith (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <trivagoflights.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 20, 2020; the Forum received payment on February 20, 2020.
On February 21, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <trivagoflights.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On February 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 12, 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@trivagoflights.us. Also on February 21, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On March 15, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco, 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 usTLD 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 usTLD Policy, usTLD 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, Trivago N.V. is a provider of technology that specializes in internet-related products and services in the hotel, lodging, and metasearch fields and uses the TRIVAGO mark in connection with such products and services.
Complainant claims rights in the marks based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <trivagoflights.us> domain name is confusingly similar to the TRIVAGO mark as the domain name incorporates the mark entirely, in addition to the generic term “flights”, along with the “.us” country-code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <trivagoflights.us> domain name. Respondent is not commonly known by the at-issue domain name nor has Respondent been authorized by Complainant to register any variant of the TRIVAGO mark in a domain name. Nothing in the available evidence indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). Further, Respondent is not making a bona fide offering of goods or services via the domain name, nor a legitimate noncommercial or fair use. Rather, Respondent uses the <trivagoflights.us> domain name to divert internet users to a website at <traveltrow.com> that competes directly with Complainant’s business.
Respondent has registered and uses the <trivagoflights.us> domain name in bad faith. Respondent registered the at-issue domain name to capitalize on the goodwill associated with the TRIVAGO trademark. Furthermore, Respondent had actual knowledge of Complainant’s mark when it registered the <trivagoflights.us> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the TRIVAGO mark.
Complainant’s rights in the TRIVAGO mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark.
Respondent uses the <trivagoflights.us> domain name to direct internet users to a website that directly compete with 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.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for the TRIVAGO mark is sufficient to show Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(I). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Additionally, the at-issue domain name consists of Complainant’s TRIVAGO trademark followed by the generic term “flights,” and the country-code top-level domain name “.us.” The differences between the at-issue <trivagoflights.us> domain name and Complainant’s TRIVAGO trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i) that Respondent’s <trivagoflights.us> domain name is confusingly similar to Complainant’s SKECHERS trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); 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.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <trivagoflights.us> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Adam Smith.” The record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <trivagoflights.us> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Next, Respondent uses the at-issue domain name to direct internet users to a website offering products and services that compete with Complainant. Respondent’s use of the confusingly similar <trivagoflights.us> domain name in this manner constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Respondent’s <trivagoflights.us> domain name was registered and used in bad faith. As discussed below without limitation, Policy ¶ 4(b) specific bad faith circumstances as well as other circumstance are present which compel the Panel to conclude that Respondent acted in bad faith regarding the at-issue domain name, pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above regarding rights and legitimate interests, Respondent uses the confusingly similar domain name to direct internet traffic to a website that offers products and services that compete with Complainant. Although not specifically argued by Complainant in its complaint, Respondent’s use of the domain name to deceive and misdirect internet users in this manner disrupts Complainant’s business and shows Respondent’s bad faith registration and use of the <trivagoflights.us> domain name pursuant to Policy ¶¶ 4(b)(iii) and (iv). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”).
Additionally, Respondent registered <trivagoflights.us> knowing that Complainant had trademark rights in the TRIVAGO trademark. Respondent’s prior knowledge is evident given the TRIVAGO mark’s notoriety and Respondent’s redirection of internet users to Complainant’s competitor. It follows that Respondent intentionally registered the at-issue domain name so that it might improperly exploit the domain name’s trademark value rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <trivagoflights.us> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <trivagoflights.us> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 15, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page