Expedia, Inc. v. Jacky Giang
Claim Number: FA2103001936854
Complainant is Expedia, Inc. (“Complainant”), represented by David M. Kelly of Kelly IP, LLP, District of Columbia, USA. Respondent is Jacky Giang (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <expediacares.com>, registered with DropCatch.com 1200 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 16, 2021; the Forum received payment on March 16, 2021.
On March 18, 2021, DropCatch.com 1200 LLC confirmed by e-mail to the Forum that the <expediacares.com> domain name is registered with DropCatch.com 1200 LLC and that Respondent is the current registrant of the name. DropCatch.com 1200 LLC has verified that Respondent is bound by the DropCatch.com 1200 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 March 19, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 8, 2021 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@expediacares.com. Also on March 19, 2021, 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 April 14, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states it is one of the world’s largest travel companies. Complainant owns an extensive portfolio or group of travel brands that feature the world’s broadest supply portfolio, encompassing more than 200 travel booking sites in more than 70 countries covering 2,900,000+ properties, 500+ airlines, and 210,000+ activities. Over the years, Complainant’s commercial success has been tremendous: it sells billions of dollars’ worth of products and services each year. For example, its revenues were more than $12,065,000,000 in 2019, more than $11,200,000,000 in 2018, more than $10,059,000,000 in 2017, more than $8,770,000,000 in 2016, and more than $6,670,000,000 in 2015. For many years, Complainant owned the domain name <expediacares.com> and used it to advertise and promote its EXPEDIA CARES philanthropic programs. Complainant’s registration for this domain name inadvertently lapsed for nonpayment of the renewal fee, and Respondent subsequently registered it. Complainant has rights in the EXPEDIA mark through its registration of the mark in the United States in 1999. The mark is registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s mark because it incorporates the EXPEDIA mark in its entirety and merely adds the generic term “cares” and the “.com” generic top-level domain (“gTLD”)
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent to use its EXPEDIA mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name is used to pass off as Complainant and offer competing goods and services.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent registered the disputed domain name in order to disrupt Complainant’s business and divert customers for commercial gain. Respondent registered the domain name after Complainant inadvertently allowed the domain name registration to expire. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the EXPEDIA mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark EXPEDIA dating back to 1999 and uses it to market travel services.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that contains links to products and services that compete with those of 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.
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 disputed domain name is confusingly similar to Complainant’s EXPEDIA mark as it contains the mark in its entirety and merely adds the generic term “cares” and the “.com” gTLD. The addition of a generic or descriptive phrase and gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists 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). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: when a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Jacky Giang”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to offer competing goods and services. Where the respondent uses a disputed domain name to offer competing goods and services, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant); see also 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)”). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website for commercial gain. Use of a disputed domain name to offer competing goods or services can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also AT&T Corp. v. RealTime Internet.com Inc., D2001-1487 (WIPO May 1, 2002) (“[U]se of domain names to sell Complainant’s goods and services without Complainant's authority . . . is bad faith use of a confusingly similar domain name.”); see also Am. Univ. v. Cook, FA 208629 (Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”). Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iii) and/or (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 <expediacares.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 14, 2021
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