Expedia, Inc. v. Wpedia.com
Claim Number: FA0705000995669
Complainant is Expedia, Inc. (“Complainant”), represented by Sanjiv
D. Sarwate, of Pattishall, McAuliffe, Newbury, Hilliard
& Geraldson LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wxpedia.com>, registered with Gandi.
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.
Honorable Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 30, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 1, 2007.
On June 1, 2007, Gandi confirmed by e-mail to the National Arbitration Forum that the <wxpedia.com> domain name is registered with Gandi and that Respondent is the current registrant of the name. Gandi has verified that Respondent is bound by the Gandi registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On June 6, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 26, 2007 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@wxpedia.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 2, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.), as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." 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. Respondent’s <wxpedia.com> domain name is confusingly similar to Complainant’s EXPEDIA mark.
2. Respondent does not have any rights or legitimate interests in the <wxpedia.com> domain name.
3. Respondent registered and used the <wxpedia.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Expedia, Inc., has continuously and extensively used the EXPEDIA mark since 1996 in connection with travel-related services, including online air, hotel, and rental car reservations.
Complainant has registered the EXPEDIA mark with trademark authorities in numerous jurisdictions, including in India with the Patent Office (“IPO”) (Reg. No. 1,288,244 issued June 4, 2004; Reg. No. 1,109,630 issued June 6, 2002) and in the United States with the Patent and Trademark Office (“USPTO”) (Reg. No. 2,402,434 issued November 7, 2000; Reg. No. 2,383,732 issued September 5, 2000; Reg. No. 2,220,719 issued January 26, 1999).
Respondent’s <wxpedia.com> domain name, which it registered on August 15, 2001, resolves to a Geocities web page that displays links to Complainant’s website at the <expedia.com> domain name. Respondent is also a former member of Complainant’s affiliate marketing program.
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 draw such inferences it 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 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.
Complainant has sufficiently established its rights in the
EXPEDIA mark pursuant to Policy ¶ 4(a)(i) through registration of the mark with
numerous trademark authorities around the world. See ESPN,
Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (concluding that the
complainant demonstrated its rights in the SPORTSCENTER mark through its valid
trademark registrations with the USPTO and similar offices around the world); see also Honeywell Int’l Inc.
v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (“Complainant’s
numerous registrations for its HONEYWELL mark throughout the world are
sufficient to establish Complainant’s rights in the HONEYWELL mark under the
Policy ¶ 4(a)(i).”); see also Renaissance Hotel Holdings, Inc. v. Renaissance
Cochin, FA 932344 (Nat. Arb. Forum
Apr. 23, 2007) (finding that it does not matter whether the complainant has
registered its trademark in the country in which the respondent resides, only
that it can establish rights in some jurisdiction).
The <wxpedia.com> domain name is a misspelled variation of
Complainant’s EXPEDIA mark, meant to take advantage of Internet users who
mistakenly type “w” instead of “e” when entering Complainant’s mark into the
<expedia.com> domain name. As the
letters “w” and “e” lie adjacent to each other on a standard keyboard,
Respondent has failed to sufficiently distinguish this domain name from
Complainant’s mark. Consequently, the
Panel finds the <wxpedia.com> domain
name to be confusingly similar to the EXPEDIA mark pursuant to Policy ¶
4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb.
Forum May 29, 2001) (finding the <belken.com> domain name to be
confusingly similar to the complainant’s BELKIN mark because the respondent
merely substituted the letter “i” in the complainant’s mark for a letter “e.”);
see also Google, Inc. v. Goog LR, FA 98462 (Nat. Arb. Forum Sept. 28, 2001) (finding that the
respondent’s <googlr.com> domain name was confusingly similar to
Complainant’s GOOGLE mark because the only difference between the domain name
and the mark was the last letter).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must initially make out a prima facie case that Respondent has no rights or legitimate interests in the domain name at issue. After Complainant has established a prima facie case, the burden then shifts to Respondent to show that it does have rights or legitimate interests in the domain name at issue. In this case, the Panel finds that Complainant has made a prima facie case sufficient to shift the burden to Respondent. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”).
Respondent has not submitted a Response to the
Complaint. The Panel thus presumes that
Respondent has no rights or legitimate interests in the <wxpedia.com> domain name, but will still consider all the
available evidence with respect to the factors listed in Policy ¶ 4(c) before
making this determination. See Pavillion Agency, Inc. v. Greenhouse
Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’
failure to respond can be construed as an admission that they have no
legitimate interest in the domain names); see
also Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336
(eResolution Sept. 23, 2000) (finding no rights or legitimate interests where
no such right or interest was immediately apparent to the panel and the
respondent did not come forward to suggest any right or interest it may have
possessed).
Respondent does not appear to be commonly known by the <wxpedia.com> domain name, for
even though the WHOIS information lists “Wpedia.com” as the registrant,
Respondent has not come forward with any additional evidence showing that it is
commonly known by the contested domain name.
Complainant has also not authorized or licensed Respondent to register a
domain name containing a variation of its EXPEDIA mark. As a result, there is insufficient evidence
to make a finding that Respondent is commonly known by the <wxpedia.com> domain name pursuant to Policy ¶ 4(c)(ii).
Respondent also does not appear to be using the <wxpedia.com> domain name in connection with 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). Respondent is simply redirecting Internet users that enter the disputed domain name to a website displaying links to Complainant’s website. While Internet users who click on these links ultimately end up at Complainant’s website, Respondent is presumably receiving click-through fees in the process. As a result, the Panel finds that Respondent’s diversion of Internet users for its own commercial gain does not establish any rights or legitimate interests pursuant to either Policy ¶ 4(c)(i) or ¶ 4(c)(iii). See Fox News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) (finding that the respondent’s use of the disputed domain name to generate revenue via advertisement and affiliate fees is not a bona fide offering of good or services); see also Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that the respondent’s commercial use of a confusingly similar domain name suggests that the respondent lacks rights or legitimate interests in the disputed domain name).
Moreover, Respondent has misspelled Complainant’s EXPEDIA
mark in the <wxpedia.com>
domain name. The letters “e” and “w” are
right next to each other on a standard keyboard, and thus Respondent is
attempting to take advantage of Internet users’ mistakes when entering
Complainant’s EXPEDIA mark into a domain name.
The Panel finds that Respondent is engaged in typosquatting, which
further demonstrates that Respondent has
no rights or legitimate interests in the disputed domain name according to
Policy ¶ 4(a)(ii). See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14,
2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of Complainant's LTD COMMODITIES mark
and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”); see also Microsoft Corp. v. Domain Registration
Respondent’s status as a former member of Complainant’s
affiliate marketing program further highlights that Respondent has no rights or
legitimate interests. In
Sports
Authority
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is diverting Internet users who enter the <wxpedia.com> domain name to its own website, which displays several links to Complainant’s website at the <expedia.com> domain name. Presumably, Respondent is attempting to earn click-through fees for each consumer it diverts to Complainant’s website through its own confusingly similar domain name. The Panel finds that Respondent is taking advantage of the confusing similarity between the disputed domain name and Complainant’s registered EXPEDIA mark in order to profit from the goodwill associated with the mark, which constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See GMAC LLC v. WhoisGuard Protected, FA 924715 (Nat. Arb. Forum May 2, 2007) (“Under Paragraph 4(b) of the Policy, evidence that a domain name registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website by creating a likelihood of confusion with the complainant’s mark serves as evidence of bad faith.”); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
In addition, Respondent is engaged in typosquatting. Internet users seeking Complainant’s travel-related
services under the EXPEDIA mark who mistakenly enter the letter “w” instead of
“e” resolve to Respondent’s website.
Therefore, Respondent has registered and used the <wxpedia.com>
domain name to take advantage of Internet user’s typographical errors, which
represents bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Nextel Communc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 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);
see also 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.”).
As a member of Complainant’s affiliate program, Respondent was aware of
Complainant’s rights in the EXPEDIA mark when registering the <wxpedia.com> domain name. By registering a confusingly similar domain
name while a member of this affiliate program, Respondent has attempted to
opportunistically benefit from its registration and use of the disputed domain
name at Complainant’s expense. The Panel
considers Respondent’s registration and use of the disputed domain name while a
member of Complainant’s affiliate program to constitute additional evidence of bad
faith under Policy ¶ 4(a)(iii). See Cricket Communc’ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (finding bad faith
registration and use where the respondent registered domain names containing
the complainant’s mark after enrolling in the complainant’s affiliate program);
see also Deluxe Corp. v.
The Panel concludes that Complainant has 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 <wxpedia.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: July 9, 2007
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