Airbnb, Inc. v. Data Protected Limited
Claim Number: FA1907001854961
Complainant is Airbnb, Inc. ("Complainant"), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Data Protected Limited ("Respondent"), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnb.luxe>, registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED.
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 July 30, 2019; the Forum received payment on July 30, 2019.
On August 1, 2019, ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED confirmed by email to the Forum that the <airbnb.luxe> domain name is registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED and that Respondent is the current registrant of the name. ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED has verified that Respondent is bound by the ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED 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 August 5, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 26, 2019 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@airbnb.luxe. Also on August 5, 2019, 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 August 27, 2019, 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 operates an online marketplace where people can list, discover, and book accommodations around the world, with more than 6 million listings in more than 100,000 cities and 191 countries. Complainant celebrated its 500 millionth guest in March 2019. Complainant has used the AIRBNB mark in connection with this marketplace since 2009, and owns various U.S. trademark registrations for AIRBNB issued as early as 2010. In June 2019, Complainant launched AIRBNB LUXE, through which it offers luxury properties with dedicated trip designers, concierge services, and other features.
The disputed domain name <airbnb.luxe> was registered on November 7, 2018; it is not being used for a website. Complainant states that it has not authorized Respondent to use its AIRBNB mark, and that Respondent is not commonly known by the disputed domain name. Complainant asks the Panel to infer that Respondent registered the domain name with the intent to sell it to Complainant, a competitor, or a cybersquatter or fraudster.
Complainant contends on the above grounds that the disputed domain name <airbnb.luxe> is confusingly similar to its AIRBNB 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 identical 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 <airbnb.luxe> corresponds to Complainant's registered AIRBNB trademark, with the ".luxe" top-level domain appended thereto. The addition of a top-level domain is normally irrelevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., De Beers Intangibles Ltd. v. Data Protected Ltd., D2019-1447 (WIPO Aug. 26, 2019) (finding <forevermark.luxe> identical to FOREVERMARK); Airbnb, Inc. v. Martin Merllin, FA 1791386 (Forum July 9, 2018) (finding <airbnb.casa> identical to AIRBNB); Airbnb, Inc. v. 张昕 / 何青玉, FA 1786279 (Forum June 18, 2018) (finding <airbnb.pro> identical to AIRBNB); Airbnb, Inc. v. Martin Merllin, FA 1780169 (Forum Apr. 30, 2018) (finding <airbnb.claims> identical to AIRBNB). The Panel therefore considers the disputed domain name to be identical to Complainant's registered mark.
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 does not appear that Respondent has made any active use of the domain name. 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. See De Beers Intangibles Ltd. v. Data Protected Ltd., supra (finding no rights or interests accruing to same respondent under similar circumstances). 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)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." 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 does not appear to have made any active use of the disputed domain name. In the absence of any explanation from Respondent, the Panel considers it reasonable to infer that Respondent registered the domain name intending to use it in a manner calculated to create and exploit confusion with Complainant's mark, most likely either by selling the domain name or by using it to attract Internet users seeking Complainant, and that Respondent is maintaining the domain name for that purpose. See, e.g., State Farm Mutual Automobile Insurance Company v. Registration Private, FA 1846160 (Forum July 1, 2019) (inferring bad faith under similar circumstances); De Beers Intangibles Ltd. v. Data Protected Ltd., supra (same, in case involving same respondent). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <airbnb.luxe> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: August 30, 2019
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