Expedia, Inc. v. Eugene Harley
Claim Number: FA0704000970858
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 <expediastravel.com>, registered with Go Daddy Software, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 25, 2007; the National Arbitration Forum received a hard copy of the Complaint on April 27, 2007.
On April 26, 2007, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <expediastravel.com> domain name is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. 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 April 30, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 21, 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@expediastravel.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May, 24, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <expediastravel.com> domain name is confusingly similar to Complainant’s EXPEDIA mark.
2. Respondent does not have any rights or legitimate interests in the <expediastravel.com> domain name.
3. Respondent registered and used the <expediastravel.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Expedia, Inc., has been providing travel agency services under the EXPEDIA mark since October 1996. Complainant maintains a popular website at the <expedia.com> domain name, where Internet users can make airline, hotel, and rental car reservations for travel around the world.
Complainant has registered the EXPEDIA mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,220,719 issued January 26, 1999) and in numerous other countries around the world.
Respondent’s <expediastravel.com> domain name, which it registered on November 3, 2006, resolves to the website of a company in direct competition with Complainant, YTB Travel.
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.
Through registration of the EXPEDIA mark with the USPTO, Complainant has satisfied Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
The <expediastravel.com>
domain name contains Complainant’s registered EXPEDIA mark in its entirety and
merely adds the letter “s” and the term “travel,” which describes the type of
services Complainant provides under its mark.
In Constellation Wines
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
In an analysis of rights or legitimate interests under
Policy ¶ 4(a)(ii), it is initially Complainant’s burden to make out a prima facie case that Respondent has no
rights or legitimate interests in the domain name in dispute. Once it has done so, the burden shifts to
Respondent to demonstrate that it has rights or legitimate interests. See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum
Sept. 25, 2006) (“Complainant must first 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 interests in the subject domain
names.”); see also Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007)
(finding that once a prima facie case has been established by the
complainant under Policy ¶ 4(c), the burden then shifts to the respondent to
demonstrate its rights or legitimate interests in the disputed domain name).
As Respondent has failed to provide a Response, the Panel presumes that Respondent has no rights or legitimate interests in the <expediastravel.com> domain name. See 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); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). However, the Panel will now examine the record to see if Respondent can establish rights or legitimate interests pursuant to Policy ¶ 4(c).
From the available evidence, there is no indication that Respondent is commonly known by the <expediastravel.com> domain name. The WHOIS information lists “Eugene Harley” as the registrant and Complainant claims that it has not authorized Respondent to register a domain name containing its federally registered mark. Consequently, Respondent has failed to establish rights or legitimate interests under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name); see also Ed. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response).
Respondent is using the <expediastravel.com> domain name to redirect Internet users to a travel agency website for YTB Travel, a direct competitor of Complainant in the travel industry. The Panel does not find such use to represent 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 Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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 Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum July 29, 2005) (holding that the respondent’s use of disputed domain names to market competing limousine services was not a bona fide offering of goods or services under Policy ¶ 4(c)(i), as the respondent was appropriating the complainant’s CAREY mark in order to profit from the mark).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s website at the <expediastravel.com> domain name resolves to a competing
travel agency website. In Peter Jerie
v. Burian, FA 795430
(Nat. Arb. Forum Oct. 23, 2006), the panel concluded that the respondent
registered and used the <sportlivescore.com> domain name in order to
disrupt the complainant’s business under the LIVESCORE mark because the
respondent was maintaining a website in direct competition with the
complainant. Respondent’s use of the
disputed domain name for similar purposes provides evidence that it has
registered the <expediastravel.com>
domain name in order to disrupt Complainant’s business in bad faith according
to Policy ¶ 4(b)(iii). See Marriott
Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6,
2005) (“The Respondent is a travel agency and thus operates in the same
business as the Complainant. The parties
can therefore be considered as competitors. The Panel thus finds that the Respondent registered
the domain name primarily for the purpose of disrupting the business of a
competitor, which constitutes evidence of registration and use in bad faith
under Policy 4(b)(iii).”).
Furthermore, Respondent is diverting Internet users seeking
Complainant’s travel agency services to its own website for commercial
gain. In Identigene, Inc. v. Genetest Labs.,
D2000-1100 (WIPO Nov. 30, 2000), the panel found that respondent’s use of the
<identagene.com> domain name, which was confusingly similar to the complainant’s
IDENTIGENE mark, to operate a website offering Internet users similar services
as Complainant constituted bad faith registration and use because it was likely
to cause consumer confusion as to the source or sponsorship of the services
offered at the domain name. Likewise, Respondent is taking advantage of
consumer confusion as to the source, affiliation, sponsorship or endorsement of
the disputed domain name and profiting from the goodwill associated with the
EXPEDIA mark. Such registration and use
indicates bad faith under Policy ¶ 4(b)(iv).
See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May
25, 2006) (find that the respondent’s use of the <arizonashuttle.net>
domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract
Internet traffic to Respondent’s website offering competing travel services
violated Policy ¶ 4(b)(iv)).
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 <expediastravel.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: June 1, 2007
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