Hotwire, Inc. v. Jen Spencer
Claim Number: FA0606000743609
Complainant is Hotwire, Inc. (“Complainant”), represented by Sanjiv D. Sarwate of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, 311 South Wacker Drive, Suite 5000, Chicago, IL, 60606. Respondent is Jen Spencer (“Respondent”), 45 West Main Ave., Omaha, NE, 68127.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <hotrwire.com>, registered with Enom, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically June 30, 2006; the National Arbitration Forum received a hard copy of the Complaint July 3, 2006.
On July 4, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <hotrwire.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. verified that Respondent is bound by the Enom, Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On July 6, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 26, 2006, by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@hotrwire.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 1, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN 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 makes the following assertions:
1. The domain name that Respondent registered, <hotrwire.com>, is confusingly similar to Complainant’s HOTWIRE mark.
2. Respondent has no rights to or legitimate interests in the <hotrwire.com> domain name.
3. Respondent registered and used the <hotrwire.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Since at least as early as 2000, Complainant, Hotwire, Inc., has been engaged in the business of offering travel agency services through its website located at the <hotwire.com> domain name. Complainant holds a federal trademark registration with the United States Patent and Trademark Office (“USPTO”) for the HOTWIRE mark. Complainant first registered its HOTWIRE mark with the USPTO January 28, 2003, (Reg. No. 2,681,692). Complainant established an affiliate marketing program through which it promotes its HOTWIRE mark. Under the affiliate marketing program, third parties may obtain a limited license to use the HOTWIRE mark on their own websites to provide a hyperlink to Complainant’s website. If an Internet user visits the third-party site, clicks on the licensed hyperlink, and then reserves travel services through Complainant’s site, the third party participating in the affiliate marketing program receives a commission.
Respondent, Jen Spencer, registered the <hotrwire.com> domain name August 6, 2003. Respondent was previously enrolled in Complainant’s affiliate marketing program, but Respondent’s participation in the program has since been terminated. Respondent is no longer affiliated or related to Complainant in any way, and is not licensed by Complainant or otherwise authorized to use Complainant’s HOTWIRE mark.
The disputed domain name resolves to a website holding page featuring a search engine.
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."
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(e), 14(a) and 15(a) of the Rules and will draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires Complainant to 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.
The Panel finds that Complainant’s registration of the HOTWIRE mark with the USPTO sufficiently demonstrates Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Ameridream, Inc. v. Russell, FA 677782 (Nat. Arb. Forum May 24, 2006) (holding that with the complainant’s registration of the AMERIDREAM mark with the USPTO, the complainant had established rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)… .”).
Furthermore, the Panel finds that Respondent’s <hotrwire.com> domain name is confusingly similar to Complainant’s HOTWIRE mark pursuant to Policy ¶ 4(a)(i). Respondent’s <hotrwire.com> domain name consists of Complainant’s mark with the addition of the letter “r” and the generic top-level domain (“gTLD”) “.com.” Prior panels have found that the addition of a single letter and gTLD to a complainant’s mark does not negate the creation of confusing similarity between the domain name and the complainant’s mark. In Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006), the panel found that the <barnesandnobles.info> and <barnesandnobles.biz> domain names were confusingly similar to the complainant’s BARNESANDNOBLE.COM mark because the additions of the letter “s” and generic top-level domains to the dominant features of the complainant’s mark did not negate the confusingly similar aspects of the domain names pursuant to Policy ¶ 4(a)(i). Similarly, in Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000), the panel found that a domain name which differed by only one letter from a trademark had a greater tendency to be confusingly similar to the trademark where the trademark was highly distinctive. Additionally, in Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000), the panel found that the top level of the domain name such as “.net” or “.com” did not affect the domain name for the purpose of determining whether it is identical or confusingly similar. Therefore, the Panel in the present case finds that Respondent’s <hotrwire.com> domain name is confusingly similar to Complainant’s HOTWIRE mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant established that it has legal rights to the mark contained in its entirety within the disputed domain name. Pursuant to Policy ¶ 4(a)(ii), Complainant must initially demonstrate that Respondent lacks rights or legitimate interests with regard to the disputed domain name. However, once Complainant establishes a prima facie case, the burden of proof shifts to Respondent and Respondent must demonstrate that it has rights or legitimate interests with respect to the disputed domain name under Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
The Panel finds that Complainant established a prima facie case and will examine the evidence on record to determine whether Respondent has any rights or legitimate interests with respect to the disputed domain name pursuant to Policy ¶ 4(c).
The Panel finds that the evidence on record does not indicate that Respondent is commonly known by the <hotrwire.com> domain name pursuant to Policy ¶ 4(c)(ii). Respondent is no longer affiliated with Complainant, and is not authorized by Complainant to use the HOTWIRE mark or to register domain names incorporating Complainant’s mark. Moreover, the evidence fails to suggest that Respondent has maintained any form of association with Complainant. Furthermore, Respondent’s WHOIS information indicates that Respondent is not commonly known by the <hotrwire.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the <hotrwire.com> domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Furthermore, the Panel finds that Respondent’s disputed <hotrwire.com> domain name resolves to a holding website featuring a search engine. Consequently, the Panel finds that the absence of use of the disputed domain name by Respondent does not represent either a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Nike, Inc. v. Crystal Int’l, D2001-0102 (WIPO Mar. 19, 2001) (finding no rights or legitimate interests where the respondent made no use of the infringing domain names); see also Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in the domain name where there is no proof that the respondent made preparations to use the domain name or one like it in connection with a bona fide offering of goods and services before notice of the domain name dispute, the domain name did not resolve to a website, and the respondent is not commonly known by the domain name).
Moreover, the Panel finds that Respondent is utilizing the <hotrwire.com> domain name to divert Internet users to Respondent’s website by taking advantage of common typing errors. Therefore, the Panel finds that Respondent is engaged in typosquatting, and that such activity underscores Respondent’s lack of rights or legitimate interests in the <hotrwire.com> domain name pursuant to Policy ¶ 4(a)(ii). See Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of Complainant's mark); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
The Panel finds that Respondent engaged in typosquatting in
registering and using the disputed domain name with the intent of diverting
Internet users who commit a common typing error to Respondent’s website. As a result, the Panel finds that
Respondent’s typosquatting activity serves as evidence of bad faith
registration and use pursuant to Policy ¶ 4(a)(iii). See Myspace, Inc. v. Kang, FA 672160 (Nat. Arb. Forum June 19, 2006) (“Respondent misspells the Mark
with intent to intercept internet users from Complainant's web site, given the
fact that Complainant's website is a popular website and the Disputed Domain
Name is a misspelling of the Mark which is highly likely to occur. This typosquatting is evidence of bad
faith.”); see also Nextel Commc'ns Inc. v. Geer, FA 477183 (Nat.
Arb. Forum Jul. 15, 2005) (finding that the respondent's registration and use
of the <nextell.com> domain name was in bad faith because the domain name
epitomized typosquatting in its purest form).
Additionally, the
Panel finds that because the disputed domain name resolves to a holding page
website, Respondent has failed to make any use of the <hotrwire.com>
domain name. Therefore, the Panel finds
that Respondent’s failure to use the disputed domain name demonstrates bad
faith registration and use under Policy ¶ 4(a)(iii). See Pharmacia &
Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or
legitimate interests where the respondent failed to submit a response to the
complaint and had made no use of the domain name in question); see also Mondich v. Brown, D2000-0004 (WIPO Feb.
16, 2000) (holding that the respondent’s failure to develop its website in a
two year period raises the inference of registration in bad faith).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hotrwire.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: August 15, 2006.
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