Expedia, Inc. v. health expedia
Claim Number: FA2004001890748
Complainant is Expedia, Inc. ("Complainant"), represented by David M. Kelly of Kelly IP, LLP, District of Columbia, United States. Respondent is health expedia ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <healthexpedia.com>, registered with GoDaddy.com, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 2, 2020; the Forum received payment on April 2, 2020.
On April 3, 2020, GoDaddy.com, LLC confirmed by email to the Forum that the <healthexpedia.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 April 6, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 27, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@healthexpedia.com. Also on April 6, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 May 1, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 uses the EXPEDIA mark in connection with travel-related products and services, operating EXPEDIA-branded travel websites in more than 30 countries and offering products and services under various EXPEDIA-formative marks and names. Complainant operates a localized EXPEDIA website that has offered online reservation services and other travel services in India since at least 2008. Complainant's revenues exceeded $11 billion in 2018. Complainant owns numerous trademark registrations for EXPEDIA and related marks in the United States, India, and other countries, including registrations issued as early as 1999. Complainant asserts that its EXPEDIA mark has become famous as a result of long commercial success and extensive use and promotion.
Respondent registered the disputed domain name <healthexpedia.com> in January 2017, and is using it for a website that offers online reservation services for medical appointments. Complainant states that Respondent is not and has never been authorized to use Complainant's mark and is not commonly known by the mark or the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <healthexpedia.com> is confusingly similar to its EXPEDIA mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <healthexpedia.com> incorporates Complainant's registered EXPEDIA trademark, adding the generic term "health" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Expedia, Inc. v. Cubicle Liquidators, Inc. / William Murray, FA 1882875 (Forum Mar. 9, 2020) (finding <officefurnitureexpedia.com> confusingly similar to EXPEDIA); Expedia, Inc. v. Miles Pennella, D2001-1416 (WIPO Mar. 14, 2002) (finding <expediamortgage.com> identical or confusingly similar to EXPEDIA). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for a website that appears to offer online reservation services for medical appointments. In light of the worldwide fame of Complainant's mark, the perfunctory nature of Respondent's website and the lack of any other information concerning Respondent, and Respondent's failure to participate in this proceeding, the Panel is skeptical that Respondent is actually engaged in a bona fide offering of goods or services.
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's famous EXPEDIA mark and is using it to promote online reservation services similar to those offered by Complainant, albeit relating to a different industry. As noted above, the Panel is not convinced that Respondent is actually engaged in a bona fide offering of goods or services, and Respondent's use appears very likely to be infringing. Under the circumstances, and taking into account Respondent's failure to offer any explanation for its selection of a name incorporating Complainant's famous mark, the Panel finds that the domain name was registered and is being used in bad faith based upon the provisions of the Policy cited above.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <healthexpedia.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 7, 2020
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