Airbnb, Inc. v. yang qijin / yangqijin
Claim Number: FA1911001870652
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is yang qijin / yangqijin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <arbnb.com>(‘the Domain Name’), registered with 22net, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 11, 2019; the Forum received payment on November 11, 2019.
On November 11, 2019, 22net, Inc. confirmed by e-mail to the Forum that the <arbnb.com> domain name is registered with 22net, Inc. and that Respondent is the current registrant of the name. 22net, Inc. has verified that Respondent is bound by the 22net, Inc. 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 November 19, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 9, 2019 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@arbnb.com. Also on November 19, 2019, 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 December 13, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarised as follows:
The Domain Name registered in December 2009 consists of a sign confusingly similar to the Complainant’s AIRBNB mark (registered, inter alia, in the USA for on line services relating to accommodation with first use recorded as March 2009) with the letter ‘i’ removed and the gTLD .com added which does not prevent such confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name has been used to redirect to VRBO.com a competitor of the Complainant (although it currently resolves to a holding page stating ‘No Sponsors This domain currently does not have any sponsors for you.’) Complainant has previously been successful in another Complaint under the Policy against the Respondent for registering a typosquatted domain name aribnb.com.In the previous Complaint brought by the Complainant, the Respondent was found not to have any rights or legitimate interests when it used aribnb.com to point to a competitor of the Complainant.
The Domain Name was registered and used in bad faith with an intent to cause confusion and disrupt the Complainant’s business. The Respondent’s past conduct and deliberate misspelling of the Complainant’s mark to point to competing web sites shows it has actual knowledge of the Complainant and its rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the AIRBNB mark (registered, inter alia, in the USA for on line services relating to accomodation with first use recorded as March 2009).
The Domain Name registered in December 2009 currently points to a holding page. The Respondent has previously been the subject of an adverse ruling under the Policy for registering a typosquatted version of the Complainant’s mark as a domain name.
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”).
Preliminary Issue: Language of the Proceedings
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
Identical and/or Confusingly Similar
The Domain Name consists of a misspelling of the Complainant’s AIRBNB mark (registered, inter alia, in the USA for online accommodation services with first use recorded as March 2009 for the same) merely omitting a letter ‘i’ and adding the gTLD “.com.” The Panel agrees that misspellings such as the omission of a letter does not distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy. See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”);
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorised the use of a misspelling of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
There is no evidence submitted in this complaint that the Domain Name has been redirecting to a competing site as the Complainant contends. No use is currently being made of the Domain Name. There is no evidence that the Respondent has used the Domain Name for a bona fide offering of goods or services or a legitimate non commercial or fair use.
Typosquatting can provide some evidence that a respondent has no rights or legitimate interests in a disputed domain name. See Macy’s Inc. and its subsidiary Macy’s West Stores, Inc. v. chen wenjie c/o Dynadot Privacy, FA1404001552918 (Forum May 21, 2014) (“Respondent’s disputed domain names are typosquatted versions of Complainant’s registered mark. Typosquatting shows a lack of rights or legitimate interests.”). There is evidence that the Complainant has previously registered a domain name containing a typosquatted version of the Complainant’s mark.
The Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003). It also indicates actual knowledge of a Complainant and its rights.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4 (b)(iii). There is no need to consider any additional grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <arbnb.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 13, 2019
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