Travelocity.com
LP v. Abadaba
Claim Number: FA0912001296623
Complainant is Travelocity.com
LP (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <travelocety.com> and <travelowcity.com>, registered with Naugus Limited, Llc., and <travelocoty.com> and <travulocity.com>, registered with Fabulous.com Pty Ltd.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
On December 14, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 4, 2010 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@travelocety.com, postmaster@travelocoty.com, postmaster@travelowcity.com, and postmaster@travulocity.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <travelocety.com>, <travelocoty.com>, <travelowcity.com>, and <travulocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY mark.
2. Respondent does not have any rights or legitimate interests in the <travelocety.com>, <travelocoty.com>, <travelowcity.com>, and <travulocity.com> domain names.
3. Respondent registered and used the <travelocety.com>, <travelocoty.com>, <travelowcity.com>, and <travulocity.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Travelocity.com LP, is an online travel booking
company that promotes its services under the TRAVELOCITY mark. Complainant registered the TRAVELOCITY mark
with the United States Patent and Trademark Office (“USPTO”)
Respondent, Abadaba S.A. c/o Domain Admin aka Abadaba S.A. c/o Administrador de dominios, registered the <travelocety.com> domain name on March 26, 2002, the <travelowcity.com> domain name on April 30, 2005, the <travulocity.com> domain name on October 12, 2005, and the <travelocoty.com> domain name on January 10, 2007. The disputed domain names resolve to a website that features links to third-party websites that compete with Complainant for business.
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.
Respondent, Abadaba S.A. c/o Domain Admin aka Abadaba S.A.
c/o Administrador de dominios, registered the <travelocety.com>
domain name on March 26, 2002, The
Panel finds that Complainant has established rights in the TRAVELOCITY mark for
purposes of Policy ¶ 4(a)(i) through its trademark registration with the USPTO
(Reg. No. 2,254,700 issued June 22, 1999).
See Microsoft
Corp. v. Burkes, FA 652743 (Nat. Arb. Forum
Complainant contends that
Respondent’s disputed domain names are confusingly similar to its TRAVELOCITY
mark. The <travelocety.com>, <travelocoty.com>, and <travulocity.com> domain
names differ from Complainant’s mark in only
two ways: (1) in each case, a single letter has been replaced with another letter;
and (2) the generic top-level domain (“gTLD”) “.com” has been added. The <travelowcity.com> domain name likewise differs from
Complainant’s mark in only two ways: (1) the
single letter “w” has been added to the mark; and (2) the generic top-level
domain (“gTLD”) “.com” has been added. The
Panel finds that neither the replacement, nor the addition of a single letter
sufficiently distinguishes a domain name from an incorporated mark for the
purposes of Policy ¶ 4(a)(i). The Panel also finds
that the addition of a gTLD also does not reduce the likelihood of confusion
between the domain name and the mark, because every domain name must contain a
top-level domain. Therefore, the Panel
finds that these changes do not minimize or eliminate the resulting likelihood
of confusion, and so Respondent’s disputed domain names are confusingly similar
to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See
Neuberger Berman Inc. v. Jacobsen,
D2000-0323 (WIPO June 12, 2000) (finding that the respondent’s
<newbergerberman.com> domain name was confusingly similar to the
complainant’s NEUBERGER BERMAN mark despite the slight difference in spelling); see also Google,
Inc. v. DktBot.org, FA 286993
(Nat. Arb. Forum Aug. 4, 2004) (“The
mere addition of a single letter to the complainant’s mark does not remove the
respondent’s domain names from the realm of confusing similarity in relation to
the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Nev. State Bank v. Modern Ltd. – Cayman Web
Dev., FA 204063 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the disputed domain names. Under Policy ¶ 4(a)(ii), after the complainant makes a prima facie case against the respondent, the respondent then has the burden of showing evidence that it does have rights and legitimate interests in the disputed domain name. The Panel finds that Complainant has made a prima facie case under Policy ¶ 4(a)(ii). Respondent has not responded to the Complaint in this case. See Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests); see also 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”).
Complainant contends that Respondent is not commonly known
by the disputed domain names nor
has it ever been the owner or licensee of the TRAVELOCITY
mark. The WHOIS records for the disputed
domain names do not indicate Respondent has ever been commonly known by any
variation of the disputed domain names. This
evidence, along with the fact that Respondent has failed to show any evidence
contrary to Complainant’s contentions, compels the Panel to find that
Respondent is not commonly known by the
disputed domain names pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding
that the respondent was not commonly known by the <shoredurometer.com>
and <shoredurometers.com> domain names because the WHOIS information
listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the
registrant of the disputed domain names and there was no other evidence in the
record to suggest that the respondent was commonly known by the domain names in
dispute); see
also Am. Online, Inc. v. World Photo Video & Imaging Corp.,
FA 109031 (Nat. Arb. Forum
The disputed domain names resolve to a website that features links to websites offering the products and services of Complainant’s competitors. The Panel finds that the use of the disputed domain names to promote Complainant’s competitors is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the use of the disputed domain name to operate a website displaying links to competing goods and services 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the disputed
domain names, all registered in 2002 or afterwards, to divert Internet
customers to the competitive websites that resolve from the confusingly similar
disputed domain names. The Panel finds
that Respondent’s use of the disputed
domain names disrupts Complainant’s business, and is evidence of
registration and use in bad faith pursuant to Policy ¶ 4(b)(iii). See
Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
Complainant also contends that Respondent is gaining
commercially through this diversion, through click-through fees that Respondent
is presumably receiving from its use of the disputed domain names. The Panel
finds that Respondent is intentionally using the disputed domain names for commercial gain through a
likelihood of confusion with Complainant’s mark, and so, pursuant to Policy ¶
4(b)(iv), the Panel finds that this use for commercial
gain also constitutes evidence of registration and use in bad faith. See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb.
Forum July 18, 2006) (finding that the respondent engaged in bad faith
registration and use by using a domain name that was confusingly similar to the
complainant’s mark to offer links to third-party websites that offered services
similar to those offered by the complainant); see
also Asbury Auto. Group, Inc. v.
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 <travelocety.com>, <travelocoty.com>, <travelowcity.com>, and <travulocity.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: January 25, 2010
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