Travelocity.com LP. v. Cosmos1 a/k/a NA NA c/o Andrey Vishnevskii
Claim Number: FA0907001275139
Complainant is Travelocity.com LP. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <traveloicty.com>, registered with Enom, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 22, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 23, 2009.
On July 22, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <traveloicty.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 July 23, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 12, 2009 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@traveloicty.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 18, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <traveloicty.com> domain name is confusingly similar to Complainant’s TRAVELOCITY mark.
2. Respondent does not have any rights or legitimate interests in the <traveloicty.com> domain name.
3. Respondent registered and used the <traveloicty.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Travelocity.com LP., is a leading provider of consumer-direct travel services. Complainant provides its services under the TRAVELOCITY mark, which Complainant has registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,254,700 issued June 22, 1999).
Respondent, Cosmos1 a/k/a NA NA c/o Andrey Vishnevskii, registered the <traveloicty.com> domain name on May 27, 2000. The disputed domain name resolves to a website that displays click-through advertising for Complainant’s competitors in the travel services industry.
Respondent has been the respondent in other UDRP
proceedings, wherein the disputed domain names were ordered to be transferred
from Respondent to the respective complainants in those cases. See,
e.g., Enter. Rent-A-Car Co. v. Vishnevskii, FA 263577 (Nat. Arb.
Forum, June 18, 2004); see also Samsung
Elect.
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 set forth evidence of its registration of the TRAVELOCITY mark with the USPTO (Reg. No. 2,254,700 issued June 22, 1999). Such evidence is sufficient for the Panel to find that Complainant has rights in the mark under Policy ¶ 4(a)(i). See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office).
Respondent’s <traveloicty.com> domain name contains a misspelled version of Complainant’s TRAVELOCITY mark and the generic top-level domain “.com.” By transposing the letters “c” and “i” in the mark, Respondent has not made any semblance of a distinguishing characteristic that would remove the disputed domain name from Policy ¶ 4(a)(i) confusing similarity. Likewise, the addition of a top-level domain name is entirely irrelevant under the Policy; as such an element is required in every domain name. Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Delta Corporate Identity, Inc. v. SearchTerms, FA 590678 (Nat. Arb. Forum Dec. 14, 2005) (concluding that the <dleta.com> domain name was confusingly similar to the complainant’s DELTA mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Because Complainant has set forth a prima facie case supporting its allegations, Respondent carries the burden to show that it does have rights or legitimate interests. 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 Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Based on the evidence within the record, there is no indication that Respondent is commonly known by the disputed domain name. The WHOIS domain name registration information only lists the registrant of record as “Cosmos1 a/k/a NA NA c/o Andrey Vishnevskii.” As such, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See 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); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
The disputed domain name resolves to website that displays various third-party click-through links to Complainant’s direct competitors in the travel services industry. The Panel infers that Respondent obtains monetary benefit from this redirection due to the presumed receipt of referral fees by Respondent from Respondent’s use of the disputed domain name. Therefore, the Panel finds that Respondent has not created 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 Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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 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).
The disputed <traveloicty.com>
domain name qualifies as typosquatting in its purest form, given the
transposition of two letters in the TRAVELOCITY mark, which is the sole feature
of the disputed domain name. As such,
Respondent’s attempt to capitalize on the typographical errors of Internet
users constitutes evidence that Respondent lacks rights and legitimate
interests in the disputed domain name under 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 has been the respondent in other UDRP
proceedings, wherein the disputed domain names were ordered to be transferred
from Respondent to the respective complainants in those cases. See,
e.g., Enter. Rent-A-Car Co. v. Vishnevskii, FA 263577 (Nat. Arb.
Forum, June 18, 2004); see also Samsung
Elect.
Respondent’s disputed domain name resolves to a website that
promotes Complainant’s direct competitors in the travel services industry through
click-through links. Such an activity
clearly disrupts Complainant’s business, as Internet users seeking
Complainant’s travel services will be redirected to Complainant’s
competitors. This qualifies as bad faith
registration and use under Policy ¶ 4(b)(iii).
See
Respondent has also created a likelihood of confusion for
commercial gain as to Complainant’s source and affiliation with the disputed
domain name and resolving website.
Respondent is presumably monetarily benefiting through the receipt of
referral fees accrued when Internet users click on the competitive links. This constitutes adequate evidence that
Respondent has also registered and used the disputed domain name in bad faith
under Policy ¶ 4(b)(iv). See Asbury Auto. Group, Inc. v.
The Panel has already determined that Respondent has engaged
in typosquatting. This practice has been
found to constitute evidence by itself of bad faith registration and use under
Policy ¶ 4(a)(iii). See, e.g., Nextel Commc’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).
Therefore, the Panel finds that Respondent has engaged in bad faith
registration and use under Policy ¶ 4(a)(iii).
See Dermalogica, Inc. v. Domains to Develop, FA
175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that
the <dermatalogica.com> domain name was a “simple misspelling” of the
complainant's DERMALOGICA mark which indicated typosquatting and
bad faith pursuant to Policy 4 ¶ (a)(iii)).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <traveloicty.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: August 31, 2009
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