Travelocity.com LP v. Domain Name
Claim Number: FA1001001305135
Complainant is Travelocity.com LP (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain names at issue are <rtavelocity.com>, <travealocity.com>,
<travelaocity.com>, <travelocuity.com>, <travelocyty.com>,
<traveloecity.com> and <trivelocity.com>,
registered with Directi Internet Solutions
Pvt. Ltd. d/b/a
Publicd.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 26, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 27, 2010.
On January
27, 2010, Directi Internet Solutions Pvt.
Ltd. d/b/a Publicd confirmed by e-mail to the National Arbitration Forum
that the <rtavelocity.com>, <travealocity.com>,
<travelaocity.com>, <travelocuity.com>, <travelocyty.com>, <traveloecity.com>and <trivelocity.com> domain
names are registered with Directi Internet
Solutions Pvt. Ltd. d/b/a Publicd and that Respondent is the current
registrant of the names. Directi Internet Solutions Pvt. Ltd. d/b/a Publicd
has verified that Respondent is bound by the Directi
Internet Solutions Pvt. Ltd. d/b/a Publicd 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 January
29, 2010, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
February 18, 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@rtavelocity.com,
postmaster@travealocity.com, postmaster@travelaocity.com, postmaster@travelocuity.com,
postmaster@travelocyty.com, postmaster@traveloecity.com and postmaster@trivelocity.com>
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 1, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1.
Respondent’s <rtavelocity.com>, <travealocity.com>, <travelaocity.com>,
<travelocuity.com>, <travelocyty.com>, <traveloecity.com>
and <trivelocity.com> domain names are confusingly
similar to Complainant’s TRAVELOCITY mark.
2.
Respondent does not have any rights or
legitimate interests in the <rtavelocity.com>, <travealocity.com>,
<travelaocity.com>, <travelocuity.com>, <travelocyty.com>,
<traveloecity.com> and <trivelocity.com>
domain names.
3.
Respondent registered and used the <rtavelocity.com>, <travealocity.com>,
<travelaocity.com>, <travelocuity.com>, <travelocyty.com>,
<traveloecity.com> and <trivelocity.com>
domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Travelocity.com LP, holds a trademark registration for its TRAVELOCITY mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,254,700 issued June 22, 1999) in connection with airline, car rental, tour package, and general travel information.
Respondent registered the <rtavelocity.com>, <travealocity.com>
and the <travelocyty.com> domain names on March 20, 2003. Respondent registered the <travelaocity.com>
and the <trivelocity.com> domain names on March 29, 2003. Respondent registered the <travelocuity.com>
and <traveloecity.com> domain names on March 14, 2003. The disputed domain names each resolve
to an inactive website.
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 asserts rights in its TRAVELOCITY mark through its holding of a registration for the TRAVELOCITY mark with the USPTO (Reg. No. 2,254,700 issued June 22, 1999). The Panel finds that Complainant has established rights in the TRAVELOCITY mark under Policy ¶ 4(a)(i) through its registration with the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant argues that Respondent’s <rtavelocity.com>, <travealocity.com>, <travelaocity.com>, <travelocuity.com>, <travelocyty.com>, <traveloecity.com> and <trivelocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY mark pursuant to Policy ¶ 4(a)(i). Respondent’s <rtavelocity.com> is confusingly similar because it merely transposes two letters in Complainant’s mark. The Panel finds that the transposition of letters creates a confusing similarity between the disputed domain name and Complainant’s mark. 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).
Respondent’s <travealocity.com>, <travelaocity.com>,
<travelocuity.com>, and <traveloecity.com> domain
names merely add a letter to the entirety of Complainant’s mark. The Panel finds that the addition of a letter
to Complainant’s mark creates a confusing similarity. See
Reuters Ltd. v. Global Net 2000,
Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which
differs by only one letter from a trademark has a greater tendency to be
confusingly similar to the trademark where the trademark is highly distinctive);
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).”).
Respondent’s <travelocyty.com> and <trivelocity.com> disputed domain names merely replace a letter in Complainant’s mark. The Panel finds that the misspelling of Complainant’s mark creates a confusing similarity between the disputed domain names and Complainant’s mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar).
All of Respondent’s disputed domain names add the generic
top-level domain (“gTLD”) “.com.” The
Panel finds that the addition of a gTLD to a registered mark is irrelevant in
distinguishing a disputed domain name and a mark. See Trip Network Inc. v. Alviera, FA
914943 (Nat. Arb. Forum Mar. 27,
2007) (concluding that the affixation of a gTLD to a domain name is irrelevant
to a Policy ¶ 4(a)(i) analysis); see also
Jerry Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); 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, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)).
Nothing in the WHOIS information indicates that Respondent is commonly known by the disputed domain names. Further, Complainant has not given Respondent permission to use Complainant’s mark in a domain name. Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Without evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also 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).
Respondent’s disputed domain names were registered on March
14, March 29, and March 30, 2003. The
disputed domain names each resolve to inactive websites. The Panel finds that Respondent’s failure to
make an active use of the disputed domain names is neither a bona fide offering of goods and services
pursuant to Policy ¶ 4(c)(i) nor a legitimate
noncommercial or fair use of the disputed domain names pursuant to Policy ¶
4(c)(iii). See Thermo Electron Corp. v. Xu,
FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s
non-use of the disputed domain names demonstrates that the respondent is not
using the disputed domain names for a bona fide offering of goods or
services under Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also TMP Int’l, Inc. v. Baker
Enters., FA 204112 (Nat. Arb. Forum Dec.
6, 2003) (“[T]he Panel concludes that Respondent's [failure to make an active
use] of the domain name does not establish rights or legitimate interests
pursuant to Policy ¶ 4(a)(ii).”).
Complainant argues that Respondent
is using a typographical error in the confusingly similar disputed domain names
to redirect Internet users to Respondent’s inactive website. The Panel agrees and finds that Respondent
has no rights or legitimate interests under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that it may consider the totality of the circumstances when conducting a Policy ¶ 4(a)(iii) analysis, and that it is not limited to the enumerated factors in Policy ¶ 4(b). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”).
The Panel finds that Respondent’s failure to make an active use of the disputed domain names is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Disney Enters. Inc. v. Meyers, FA 697818 (Nat. Arb. Forum June 26, 2006) (holding that the non-use of a disputed domain name for several years constitutes bad faith registration and use under Policy ¶ 4(a)(iii); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith).
As established previously, Respondent has engaged in the
practice of typosquatting by using a common mistypings of Complainant’s
TRAVELOCITY mark to misdirect Internet users.
The Panel finds typosquatting is itself evidence of bad faith
registration and use under Policy ¶ 4(a)(iii). See 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); see also Microsoft
Corp. v. Domain Registration
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <rtavelocity.com>, <travealocity.com>,
<travelaocity.com>, <travelocuity.com>, <travelocyty.com>,
<traveloecity.com> and <trivelocity.com>
domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: March 24, 2010
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