Priceline.com, Inc. v. Domain Admin c/o Taranga Services Pty Ltd
Claim Number: FA1002001310249
Complainant is Priceline.com, Inc. (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <pricelince.com>, registered with Moniker.
The undersigned certifies that he or 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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 25, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 26, 2010.
On February 26, 2010, Moniker confirmed by e-mail to the National Arbitration Forum that the <pricelince.com> domain name is registered with Moniker and that Respondent is the current registrant of the name. Moniker has verified that Respondent is bound by the Moniker 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 February 26, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 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@pricelince.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 29, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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 <pricelince.com> domain name is confusingly similar to Complainant’s PRICELINE.COM mark.
2. Respondent does not have any rights or legitimate interests in the <pricelince.com> domain name.
3. Respondent registered and used the <pricelince.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Priceline.com, Inc., has registered its PRICELINE.COM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 75,899,889 issued August 28, 2001). Complainant uses the mark in connection with electronic travel agency services to include making reservations and bookings for transportation, and providing information in connection with the bookings.
Respondent, Domain Admin c/o Taranga Services Pty Ltd, registered the disputed domain name August 14, 2002. The disputed domain name resolves to a web directory of commercial third parties that includes competitors of Complainant.
Respondent is a serial cybersquatter who has been the
respondent in prior UDRP proceedings, resulting in the disputed domain names’
transfer to the respective complainants. See Capital One Fin. Corp. v. Domain Admin a/k/a Taranga Serv. Pty Ltd,
FA0909001285637 (Nat. Arb. Forum November 2, 2009); see also Eidos Interactive Ltd v. Moniker Privacy Serv./ Taranga Serv.
Pty Ltd, D2009-0124 (WIPO March 31, 2009).
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 it has rights in its PRICELINE.COM mark due to its registration with the USPTO (Reg. No. 75,371,458 issued August 28, 2001). The Panel finds that Complainant’s registration of its PRICELINE.COM mark with the USPTO is sufficient to establish Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). See Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”).
The disputed domain name is confusingly similar to Complainant’s
PRICELINE.COM mark. Respondent’s <pricelince.com> disputed domain name
adds a generic letter “c.” Complainant
contends that the addition of one letter to the mark is typosquatting. The Panel finds the misspelling of the mark in
the disputed domain name is a form of typosquatting and that the disputed
domain name is confusingly similar to Complainant’s mark, pursuant to Policy ¶
4(a)(i). See Neiman Marcus Group, Inc.
v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002)
(finding that the <neimanmacus.com> domain name was a simple misspelling
of the complainant’s NEIMAN MARCUS mark and was a classic example of
typosquatting, which was evidence that the domain name was confusingly similar
to the mark); see also Am. Online Inc. v.
Chinese ICQ Network, D2000-0808 (WIPO Aug. 31, 2000) (finding that the
addition of the numeral 4 in the domain name <4icq.com> does nothing to
deflect the impact on the viewer of the mark ICQ and is therefore confusingly
similar).
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant has made a prima facie case in support of this, the burden to establish that Respondent has rights or legitimate interests in the disputed domain name shifts to the Respondent, pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has established a prima facie case, shifting the burden to the Respondent. In light of Respondent’s failure to respond to the proceedings, the Panel will proceed to analyze the record in light of Policy ¶ 4(c). 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 Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
The WHOIS information for the <pricelince.com> domain name lists “Domain Admin c/o Taranga Services Pty Ltd” as the registrant, which indicates that Respondent is not commonly known by the disputed domain name. Complainant asserts no license or other authorization has been given to Respondent to use the PRICELINE.COM mark. Furthermore, Respondent has not offered any evidence to suggest that Policy ¶ 4(c)(ii) applies in this case. Without affirmative evidence, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4 (c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly know by the disputed domain name); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s use of the <pricelince.com> domain name resolves to a web directory with links to third party competitors of Complainant. The Panel finds that Respondent’s use of the <pricelince.com> domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a making legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with 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 Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (“The Panel finds that Respondent’s operation of a website virtually identical to Complainant’s website to offer competing travel reservation services does not fall within the parameters of 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)”).
Complainant asserts that the disputed domain name is an
intentional misspelling of the PRICELINE.COM mark. Complainant further asserts
that Respondent is capitalizing on this misspelling to misdirect Internet users
seeking Complainant’s services. The
Panel finds that this constitutes the practice of typosquatting, which is
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
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Complainant asserts that Respondent has a pattern of cybersquatting
as evidenced by several adverse UDRP proceedings against Respondent. Complainant has offered numerous other UDRP
decisions against Respondent where Respondent was found to have registered and
used other disputed domain names in bad faith. See Capital One Fin. Corp. v. Domain Admin a/k/a Taranga Serv. Pty Ltd,
FA0909001285637 (Nat. Arb. Forum November 2, 2009); see also Eidos Interactive Ltd v. Moniker Privacy Serv./ Taranga Serv.
Pty Ltd, D2009-0124 (WIPO March 31, 2009). The Panel finds Respondent’s pattern of
registration and use of disputed domain names to constitute bad faith pursuant
to Policy ¶ 4(b)(ii). See Westcoast
Contempo Fashions Ltd. v.
Respondent’s disputed domain name resolves to a web directory with links to third party competitors of Complainant. The Panel finds Respondent’s registration and use of the <pricelince.com> domain name to operate a web directory that contains links to third-party websites that compete with the Complainant constitutes a disruption of Complainant’s business and qualifies as bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Complainant asserts that Internet users, searching for Complainant’s services, will be confused by the disputed domain name when it resolves to a web directory with links to third party competitors of Complainant. Further, Internet users may become confused as to Complainant’s sponsorship or affiliation with the disputed domain name and resolving website. Respondent attempts to profit from this confusion through its presumed receipt of click-through fees by linking to third-parties. Therefore, the Panel finds Respondent’s use of the <pricelince.com> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes.
The Panel has previously concluded that Respondent is
engaged in the practice of typosquatting through the use of the <pricelince.com> domain name. The Panel finds that this practice is stand
alone evidence of bad faith registration and use pursuant to 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 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 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 <pricelince.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: April 12, 2010
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