Orbitz Worldwide, LLC v. Above.com Domain Privacy
Claim Number: FA1303001490848
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <aircheaptickets.com>, <bheaptickets.com>, <borbitz.com>, <cceaptickets.com>, <cfeaptickets.com>, <cfheaptickets.com>, <ch3eaptickets.com>, <ch4eaptickets.com>, <che3aptickets.com>, <chea0ptickets.com>, <cheaatickets.com>, <cheap5tickets.com>, <cheapeickets.com>, <cheaphickets.com>, <cheaplickets.com>, <cheapoickets.com>, <cheapt5ickets.com>, <cheaptibkets.com>, <cheapticcets.com>, <cheapticke4ts.com>, <cheapticke5ts.com>, <cheaptickees.com>, <cheaptickegts.com>, <cheaptickehts.com>, <cheaptickeits.com>, <cheaptickeks.com>, <cheaptickens.com>, <cheaptickess.com>, <cheapticket5.com>, <cheapticket5s.com>, <cheapticketf.com>, <cheapticketfs.com>, <cheapticketg.com>, <cheapticketks.com>, <cheapticketl.com>, <cheapticketsco.com>, <cheapticketse.com>, <cheapticketsforstudents.net>, <cheapticketsss.com>, <cheapticketsz.com>, <cheaptickeus.com>, <cheaptickews.com>, <cheapticnets.com>, <cheaptifckets.com>, <cheaptiockets.com>, <cheaptiokets.com>, <cheaptirkets.com>, <cheaptixckets.com>, <cheaptlickets.com>, <cheapttckets.com>, <cheapztickets.com>, <cheastickets.com>, <cheaxptickets.com>, <chedptickets.com>, <chepaptickets.com>, <chesaptickets.com>, <cheuptickets.com>, <chfeaptickets.com>, <chneaptickets.com>, <chteaptickets.com>, <chyeaptickets.com>, <cseaptickets.com>, <eheaptickets.com>, <fcheaptickets.com>, <orbithz.com>, <orbitzbusiness.net>, <orbitzrecordlocator.com>, <orkitz.com>, <ororbitz.com>, <sorbitz.com>, <theaptickets.com>, and <wheaptickets.com>, registered with Above.Com Pty Ltd.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits \\\as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically March 20, 2013; the National Arbitration Forum received payment March 20, 2013.
On Mar 21, 2013, Above.Com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <aircheaptickets.com>, <bheaptickets.com>, <borbitz.com>, <cceaptickets.com>, <cfeaptickets.com>, <cfheaptickets.com>, <ch3eaptickets.com>, <ch4eaptickets.com>, <che3aptickets.com>, <chea0ptickets.com>, <cheaatickets.com>, <cheap5tickets.com>, <cheapeickets.com>, <cheaphickets.com>, <cheaplickets.com>, <cheapoickets.com>, <cheapt5ickets.com>, <cheaptibkets.com>, <cheapticcets.com>, <cheapticke4ts.com>, <cheapticke5ts.com>, <cheaptickees.com>, <cheaptickegts.com>, <cheaptickehts.com>, <cheaptickeits.com>, <cheaptickeks.com>, <cheaptickens.com>, <cheaptickess.com>, <cheapticket5.com>, <cheapticket5s.com>, <cheapticketf.com>, <cheapticketfs.com>, <cheapticketg.com>, <cheapticketks.com>, <cheapticketl.com>, <cheapticketsco.com>, <cheapticketse.com>, <cheapticketsforstudents.net>, <cheapticketsss.com>, <cheapticketsz.com>, <cheaptickeus.com>, <cheaptickews.com>, <cheapticnets.com>, <cheaptifckets.com>, <cheaptiockets.com>, <cheaptiokets.com>, <cheaptirkets.com>, <cheaptixckets.com>, <cheaptlickets.com>, <cheapttckets.com>, <cheapztickets.com>, <cheastickets.com>, <cheaxptickets.com>, <chedptickets.com>, <chepaptickets.com>, <chesaptickets.com>, <cheuptickets.com>, <chfeaptickets.com>, <chneaptickets.com>, <chteaptickets.com>, <chyeaptickets.com>, <cseaptickets.com>, <eheaptickets.com>, <fcheaptickets.com>, <orbithz.com>, <orbitzbusiness.net>, <orbitzrecordlocator.com>, <orkitz.com>, <ororbitz.com>, <sorbitz.com>, <theaptickets.com>, and <wheaptickets.com> domain names are registered with Above.Com Pty Ltd. and that Respondent is the current registrant of the names. Above.Com Pty Ltd. verified that Respondent is bound by the Above.Com Pty Ltd. registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 22, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 11, 2013, 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@aircheaptickets.com, postmaster@bheaptickets.com, postmaster@borbitz.com, postmaster@cceaptickets.com, postmaster@cfeaptickets.com, postmaster@cfheaptickets.com, postmaster@ch3eaptickets.com, postmaster@ch4eaptickets.com, postmaster@che3aptickets.com, postmaster@chea0ptickets.com, postmaster@cheaatickets.com, postmaster@cheap5tickets.com, postmaster@cheapeickets.com, postmaster@cheaphickets.com, postmaster@cheaplickets.com, postmaster@cheapoickets.com, postmaster@cheapt5ickets.com, postmaster@cheaptibkets.com, postmaster@cheapticcets.com, postmaster@cheapticke4ts.com, postmaster@cheapticke5ts.com, postmaster@cheaptickees.com, postmaster@cheaptickegts.com, postmaster@cheaptickehts.com, postmaster@cheaptickeits.com, postmaster@cheaptickeks.com, postmaster@cheaptickens.com, postmaster@cheaptickess.com, postmaster@cheapticket5.com, postmaster@cheapticket5s.com, postmaster@cheapticketf.com, postmaster@cheapticketfs.com, postmaster@cheapticketg.com, postmaster@cheapticketks.com, postmaster@cheapticketl.com, postmaster@cheapticketsco.com, postmaster@cheapticketse.com, postmaster@cheapticketsforstudents.net, postmaster@cheapticketsss.com, postmaster@cheapticketsz.com, postmaster@cheaptickeus.com, postmaster@cheaptickews.com, postmaster@cheapticnets.com, postmaster@cheaptifckets.com, postmaster@cheaptiockets.com, postmaster@cheaptiokets.com, postmaster@cheaptirkets.com, postmaster@cheaptixckets.com, postmaster@cheaptlickets.com, postmaster@cheapttckets.com, postmaster@cheapztickets.com, postmaster@cheastickets.com, postmaster@cheaxptickets.com, postmaster@chedptickets.com, postmaster@chepaptickets.com, postmaster@chesaptickets.com, postmaster@cheuptickets.com, postmaster@chfeaptickets.com, postmaster@chneaptickets.com, postmaster@chteaptickets.com, postmaster@chyeaptickets.com, postmaster@cseaptickets.com, postmaster@eheaptickets.com, postmaster@fcheaptickets.com, postmaster@orbithz.com, postmaster@orbitzbusiness.net, postmaster@orbitzrecordlocator.com, postmaster@orkitz.com, postmaster@ororbitz.com, postmaster@sorbitz.com, postmaster@theaptickets.com, and postmaster@wheaptickets.com. Also on March 22, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 29, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 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.
Complainant makes the following allegations in this proceeding:
a) Complainant is a leading global online travel company using the Internet to allow travelers to research, to plan, and to book a broad range of travel products. Complainant owns the rights to the CHEAPTICKETS.COM mark and the ORBITZ mark. Complainant registered the CHEAPTICKETS.COM mark (Reg. No. 2,665,841 registered December 24, 2002) with the United States Patent and Trademark Office (“USPTO”). Complainant similarly registered the ORBITZ mark (e.g., Reg. No. 2,858,685 registered June 29, 2004) with the USPTO.
b) The disputed domain names are confusingly similar to Complainant’s marks. Respondent’s addition of a generic top-level domain (“gTLD”) to some domains and the misspelling of the marks in many of the domain names by one letter do not negate the confusing similarity. Nor does the addition of a generic term, such as in the <aircheaptickets.com>, <cheapticketsforstudents.net>, <orbitzbusiness.net>, and <orbitzrecordlocator.com> domain names.
c) Respondent has no rights to or legitimate interests in the disputed domain names.
1. Respondent has not been commonly known by the disputed domain names. The WHOIS record suggests that Respondent is known as an entity other than the trademarks associated with Complainant. Additionally, Complainant has not licensed, authorized, or permitted Respondent to register domain names incorporating Complainant’s marks.
2. Respondent uses the disputed domain names to display links to competing and noncompeting third-party websites, as well as links to Complainant’s own website. Respondent presumably receives pay-per-click fees from the websites.
d) Complainant contends that Respondent registered and used the disputed domain names in bad faith.
1. Respondent advertises pay-per-click links on the disputed domain names in order to divert potential customers away from Complainant to third-party websites. This is disruptive to Complainant’s business.
2. Respondent’s display of generic and competing links as well as links to Complainant’s own website is evidence of bad faith. Respondent is intentionally misleading Internet users. Respondent is attempting to commercially benefit from the use of Complainant’s marks by achieving a wrongful competitive advantage.
3. Most of the disputed domain names demonstrate a classic example of typosquatting, designed to take advantage of Internet users’ typographical errors.
4. Respondent had notice of Complainant’s marks by virtue of having been part of an affiliate program with Complainant. Respondent displays Complainant’s mark on the disputed domain names’ resolving websites.
Respondent did not submit a Response in this proceeding.
The Panel notes that the disputed domain names were registered on the following dates:
a. <aircheaptickets.com>, September 24, 2008
b. <bheaptickets.com>, April 29, 2010
c. <borbitz.com>, March 31, 2011
d. <cceaptickets.com>, April 29, 2010
e. <cfeaptickets.com>, January 7, 2012
f. <cfheaptickets.com>, April 28, 2010
g. <ch3eaptickets.com>, April 28, 2010
h. <ch4eaptickets.com>, April 28, 2010
i. <che3aptickets.com>, April 28, 2010
j. <chea0ptickets.com>, March 21, 2012
k. <cheaatickets.com>, April 29, 2010
l. <cheap5tickets.com>, March 21, 2012
m. <cheapeickets.com>, June 29, 2010
n. <cheaphickets.com>, March 21, 2012
o. <cheaplickets.com>, April 29, 2010
p. <cheapoickets.com>, April 29, 2010
q. <cheapt5ickets.com>, March 21, 2012
r. <cheaptibkets.com>, January 7, 2012
s. <cheapticcets.com>, April 27, 2010
t. <cheapticke4ts.com>, February 7, 2010
u. <cheapticke5ts.com>, March 21, 2012
v. <cheaptickees.com>, April 29, 2010
w. <cheaptickegts.com>, February 7, 2010
x. <cheaptickehts.com>, March 21, 2012
y. <cheaptickeits.com>, November 5, 2009
z. <cheaptickeks.com>, January 11, 2009
aa. <cheaptickens.com>, June 6, 2010
bb. <cheaptickess.com>, April 29, 2010
cc. <cheapticket5.com>, April 29, 2010
dd. <cheapticket5s.com>, February 7, 2010
ee. <cheapticketf.com>, April 27, 2010
ff. <cheapticketfs.com>, April 27, 2010
gg. <cheapticketg.com>, July 16, 2012
hh. <cheapticketks.com>, May 23, 2008
ii. <cheapticketl.com>, February 7, 2012
jj. <cheapticketsco.com>, February 7, 2012
kk. <cheapticketse.com>, February 7, 2010
ll. <cheapticketsforstudents.net>, July 6, 2012
mm <cheapticketsss.com>, January 7, 2012
nn. <cheapticketsz.com>, February 13, 2012
oo. <cheaptickeus.com>, January 7, 2012
pp. <cheaptickews.com>, April 28, 2010
qq.<cheapticnets.com>, January 7, 2012
rr. <cheaptifckets.com>, April 28, 2010
ss. <cheaptiockets.com>, August 16, 2008
tt. <cheaptiokets.com>, April 29, 2010
uu.<cheaptirkets.com>, June 22, 2010
vv.<cheaptixckets.com>, February 7, 2010
ww.<cheaptlickets.com>, March 21, 2012
xx.<cheapttckets.com>, April 29, 2010
yy.<cheapztickets.com>, January 7, 2012
zz.<cheastickets.com>, April 29, 2010
aaa.<cheaxptickets.com>, January 7, 2012
bbb.<chedptickets.com>, April 29, 2010
ccc.<chepaptickets.com>, March 21, 2012
ddd.<chesaptickets.com>, February 7, 2010
eee.<cheuptickets.com>, June 6, 2010
fff.<chfeaptickets.com>, January 7, 2012
ggg.<chneaptickets.com>, February 13, 2012
hhh.<chteaptickets.com>, January 1, 2007
iii.<chyeaptickets.com>, April 28, 2010
jjj.<cseaptickets.com>, April 29, 2010
kkk.<eheaptickets.com>, April 29, 2010
lll.<fcheaptickets.com>, October 21, 2010
mmm.<orbithz.com>, August 25, 2008
nnn.<orbitzbusiness.net>, July 29, 2009
ooo.<orbitzrecordlocator.com>, December 13, 2011
ppp.<orkitz.com>, December 14, 2011
qqq.<ororbitz.com>, August 4, 2009
rrr.<sorbitz.com>, September 6, 2009
sss.<theaptickets.com>, and June 8, 2010
ttt.<wheaptickets.com> domain names April 29, 2010
Complainant established that it has rights to the marks contained within the numerous disputed domain names.
Each of those disputed domain names is confusingly similar to one of Complainant’s protected marks.
Respondent has shown no rights to or legitimate interests in the domain names containing Complainant’s protected marks.
Respondent registered and used the multiple disputed domain names containing Complainant’s protected marks in bad faith.
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 Complainant to 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.
Given 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 will draw such inferences as the Panel 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.”).
Identical to or Confusingly Similar
Complainant asserts that it is a leading global online travel company, using the Internet to allow travelers to research, plan, and book a broad range of travel products. Complainant states that it owns the rights to the CHEAPTICKETS.COM and the ORBITZ marks. Complainant demonstrates that Complainant registered the CHEAPTICKETS.COM mark (Reg. No. 2,665,841 registered December 24, 2002) with the USPTO. See Complainant’s Exhibit E. Complainant similarly proves that it registered the ORBITZ mark (e.g., Reg. No. 2,858,685 registered June 29, 2004) with the USPTO. See Complainant’s Exhibit E. Registration of a mark with the USPTO is sufficient evidence of having established rights in the mark. 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).”). The Panel notes that such trademark rights satisfy Policy ¶ 4(a)(i) irrespective of the location of the parties in relation to the country in which the mark is registered. See 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). Therefore, the Panel finds that Complainant has rights in the CHEAPTICKETS.COM and ORBITZ marks pursuant to Policy ¶ 4(a)(i).
Complainant further alleges that the disputed domain names are confusingly similar to Complainant’s marks. The Panel notes that the <aircheaptickets.com>, <bheaptickets.com>, <cceaptickets.com>, <cfeaptickets.com>, <cfheaptickets.com>, <ch3eaptickets.com>, <ch4eaptickets.com>, <che3aptickets.com>, <chea0ptickets.com>, <cheaatickets.com>, <cheap5tickets.com>, <cheapeickets.com>, <cheaphickets.com>, <cheaplickets.com>, <cheapoickets.com>, <cheapt5ickets.com>, <cheaptibkets.com>, <cheapticcets.com>, <cheapticke4ts.com>, <cheapticke5ts.com>, <cheaptickees.com>, <cheaptickegts.com>, <cheaptickehts.com>, <cheaptickeits.com>, <cheaptickeks.com>, <cheaptickens.com>, <cheaptickess.com>, <cheapticket5.com>, <cheapticket5s.com>, <cheapticketf.com>, <cheapticketfs.com>, <cheapticketg.com>, <cheapticketks.com>, <cheapticketl.com>, <cheapticketsco.com>, <cheapticketse.com>, <cheapticketsforstudents.net>, <cheapticketsss.com>, <cheapticketsz.com>, <cheaptickeus.com>, <cheaptickews.com>, <cheapticnets.com>, <cheaptifckets.com>, <cheaptiockets.com>, <cheaptiokets.com>, <cheaptirkets.com>, <cheaptixckets.com>, <cheaptlickets.com>, <cheapttckets.com>, <cheapztickets.com>, <cheastickets.com>, <cheaxptickets.com>, <chedptickets.com>, <chepaptickets.com>, <chesaptickets.com>, <cheuptickets.com>, <chfeaptickets.com>, <chneaptickets.com>, <chteaptickets.com>, <chyeaptickets.com>, <cseaptickets.com>, <eheaptickets.com>, <fcheaptickets.com>, <theaptickets.com>, and <wheaptickets.com> domain names all incorporate a misspelled version of the CHEAPTICKETS.COM mark.
Complainant argues that the misspelling of the marks in many of the domain names by one letter do not negate the confusing similarity, nor does the addition of a generic or descriptive term, such as in the <aircheaptickets.com> and <cheapticketsforstudents.net> domain names. The Panel agrees and thus finds that the <aircheaptickets.com>, <bheaptickets.com>, <cceaptickets.com>, <cfeaptickets.com>, <cfheaptickets.com>, <ch3eaptickets.com>, <ch4eaptickets.com>, <che3aptickets.com>, <chea0ptickets.com>, <cheaatickets.com>, <cheap5tickets.com>, <cheapeickets.com>, <cheaphickets.com>, <cheaplickets.com>, <cheapoickets.com>, <cheapt5ickets.com>, <cheaptibkets.com>, <cheapticcets.com>, <cheapticke4ts.com>, <cheapticke5ts.com>, <cheaptickees.com>, <cheaptickegts.com>, <cheaptickehts.com>, <cheaptickeits.com>, <cheaptickeks.com>, <cheaptickens.com>, <cheaptickess.com>, <cheapticket5.com>, <cheapticket5s.com>, <cheapticketf.com>, <cheapticketfs.com>, <cheapticketg.com>, <cheapticketks.com>, <cheapticketl.com>, <cheapticketsco.com>, <cheapticketse.com>, <cheapticketsforstudents.net>, <cheapticketsss.com>, <cheapticketsz.com>, <cheaptickeus.com>, <cheaptickews.com>, <cheapticnets.com>, <cheaptifckets.com>, <cheaptiockets.com>, <cheaptiokets.com>, <cheaptirkets.com>, <cheaptixckets.com>, <cheaptlickets.com>, <cheapttckets.com>, <cheapztickets.com>, <cheastickets.com>, <cheaxptickets.com>, <chedptickets.com>, <chepaptickets.com>, <chesaptickets.com>, <cheuptickets.com>, <chfeaptickets.com>, <chneaptickets.com>, <chteaptickets.com>, <chyeaptickets.com>, <cseaptickets.com>, <eheaptickets.com>, <fcheaptickets.com>, <theaptickets.com>, and <wheaptickets.com> domain names are confusingly similar to the CHEAPTICKETS.COM mark pursuant to Policy ¶ 4(a)(i). 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 Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)).
Complainant asserts that the <borbitz.com>, <orbithz.com>, <orbitzbusiness.net>, <orbitzrecordlocator.com>, <orkitz.com>, <ororbitz.com>, <sorbitz.com>, and <theaptickets.com> domain names are also confusingly similar to a mark of Complainant’s. The Panel notes that the <borbitz.com>, <orbithz.com>, <orbitzbusiness.net>, <orbitzrecordlocator.com>, <orkitz.com>, <ororbitz.com>, <sorbitz.com>, and <theaptickets.com> domain names all incorporate the ORBITZ mark, either misspelled by a single letter or supplemented by a generic term. The Panel notes that the domain names all include a gTLD, an addition that is not significant to a determination under Policy ¶ 4(a)(i). Therefore, the Panel finds that the <borbitz.com>, <orbithz.com>, <orbitzbusiness.net>, <orbitzrecordlocator.com>, <orkitz.com>, <ororbitz.com>, <sorbitz.com>, and <theaptickets.com> domain names are confusingly similar to the ORBITZ mark under Policy ¶ 4(a)(i). See 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 Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the subject domain name incorporates the VIAGRA mark in its entirety, and deviates only by the addition of the word “bomb,” the domain name is rendered confusingly similar to the complainant’s mark); see also 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).
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The Panel finds that the disputed domain names are confusingly similar to Complainant’s protected marks; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights to and Legitimate Interests
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden of proof shifts to Respondent to show that it does have such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain names. Complainant contends that Respondent has not been commonly known by the disputed domain names. Complainant asserts that the WHOIS record suggests that Respondent is known as an entity other than the trademarks associated with Complainant. The Panel notes that the WHOIS records list “Above.com Domain Privacy” as the domain name registrant. Additionally, Complainant claims that it has not licensed, authorized, or permitted Respondent to register domain names incorporating Complainant’s marks. The WHOIS record for a domain name, as well as evidence as to acquiescence to the use of a mark, is evidence of whether a respondent is commonly known by a domain name. 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). As such, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Complainant next alleges that Respondent’s use of the disputed domain names demonstrates a lack of rights and legitimate interests. Complainant contends that Respondent uses the disputed domain names to display links to competing and noncompeting third-party websites, as well as links to Complainant’s own website. See Complainant’s Exhibit H. Further, Complainant presumes that Respondent receives pay-per-click fees from the websites. In Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007), the panel held that the display of links via a disputed domain name is not a use that falls within the bounds of Policy ¶¶ 4(c)(i) and 4(c)(iii). The Panel finds that Respondent’s use of the disputed domain names is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain names; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Complainant contends that Respondent registered and used the disputed domain names in bad faith. Respondent advertises pay-per-click links on the disputed domain names in order to divert potential customers away from Complainant to third-party websites, also according to Complainant and that this disrupts Complainant’s business. Therefore, the Panel finds that Respondent’s registration and use of the disputed domain names is disruptive, and thus supports findings of bad faith under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
Complainant argues that Respondent should be considered as having registered and having used the disputed domain names in bad faith given Respondent’s display of generic and competing links as well as links to Complainant’s own website at the domain. Complainant claims that Respondent is intentionally misleading Internet users and that Respondent is attempting to commercially benefit from the use of Complainant’s marks by achieving a wrongful competitive advantage. The Panel agrees and holds that Respondent is attempting to take commercial advantage of Internet users’ mistakes, conduct that also supports findings of bad faith under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Finally, Complainant argues that most of the disputed domain names demonstrate a classic example of typosquatting, designed to take advantage of Internet users’ typographical errors. Complainant argues that the disputed domain names are misspelled by one letter in different versions of Complainant’s mark. The Panel notes, however, that the <aircheaptickets.com>, <cheapticketsforstudents.net>, <orbitzbusiness.net>, and <orbitzrecordlocator.com> domain names are supplemented by generic or descriptive terms, and are not mere typosquatting in the traditional sense. However, the Panel notes that the second-level portion of the <bheaptickets.com>, <borbitz.com>, <cceaptickets.com>, <cfeaptickets.com>, <cfheaptickets.com>, <ch3eaptickets.com>, <ch4eaptickets.com>, <che3aptickets.com>, <chea0ptickets.com>, <cheaatickets.com>, <cheap5tickets.com>, <cheapeickets.com>, <cheaphickets.com>, <cheaplickets.com>, <cheapoickets.com>, <cheapt5ickets.com>, <cheaptibkets.com>, <cheapticcets.com>, <cheapticke4ts.com>, <cheapticke5ts.com>, <cheaptickees.com>, <cheaptickegts.com>, <cheaptickehts.com>, <cheaptickeits.com>, <cheaptickeks.com>, <cheaptickens.com>, <cheaptickess.com>, <cheapticket5.com>, <cheapticket5s.com>, <cheapticketf.com>, <cheapticketfs.com>, <cheapticketg.com>, <cheapticketks.com>, <cheapticketl.com>, <cheapticketsco.com>, <cheapticketse.com>, <cheapticketsss.com>, <cheapticketsz.com>, <cheaptickeus.com>, <cheaptickews.com>, <cheapticnets.com>, <cheaptifckets.com>, <cheaptiockets.com>, <cheaptiokets.com>, <cheaptirkets.com>, <cheaptixckets.com>, <cheaptlickets.com>, <cheapttckets.com>, <cheapztickets.com>, <cheastickets.com>, <cheaxptickets.com>, <chedptickets.com>, <chepaptickets.com>, <chesaptickets.com>, <cheuptickets.com>, <chfeaptickets.com>, <chneaptickets.com>, <chteaptickets.com>, <chyeaptickets.com>, <cseaptickets.com>, <eheaptickets.com>, <fcheaptickets.com>, <orbithz.com>, <orkitz.com>, <ororbitz.com>, <sorbitz.com>, <theaptickets.com>, and <wheaptickets.com> domain names all differ from either the CHEAPTICKETS.COM or ORBITZ marks by a single letter. Such an insignificant change is intended to collect Internet traffic based on Internet users’ accidental misspelling of a true mark, thus constituting typosquatting. See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark). Therefore, the Panel finds that Respondent has engaged in typosquatting and thus has acted in bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant argues that Respondent had knowledge of Complainant's rights in the protected marks. Complainant contends that Respondent displays Complainant’s marks, misspelled, on the disputed domain names’ resolving websites and that Respondent has knowledge based upon Respondent’s participation in an affiliate program with Complainant. Although generally constructive notice is not sufficient for a finding of bad faith, the Panel here finds that Respondent had actual knowledge of Complainant's marks and rights in the marks and therefore the Panel finds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
Respondent makes no contentions relative to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and used the disputed domain names in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aircheaptickets.com>, <bheaptickets.com>, <borbitz.com>, <cceaptickets.com>, <cfeaptickets.com>, <cfheaptickets.com>, <ch3eaptickets.com>, <ch4eaptickets.com>, <che3aptickets.com>, <chea0ptickets.com>, <cheaatickets.com>, <cheap5tickets.com>, <cheapeickets.com>, <cheaphickets.com>, <cheaplickets.com>, <cheapoickets.com>, <cheapt5ickets.com>, <cheaptibkets.com>, <cheapticcets.com>, <cheapticke4ts.com>, <cheapticke5ts.com>, <cheaptickees.com>, <cheaptickegts.com>, <cheaptickehts.com>, <cheaptickeits.com>, <cheaptickeks.com>, <cheaptickens.com>, <cheaptickess.com>, <cheapticket5.com>, <cheapticket5s.com>, <cheapticketf.com>, <cheapticketfs.com>, <cheapticketg.com>, <cheapticketks.com>, <cheapticketl.com>, <cheapticketsco.com>, <cheapticketse.com>, <cheapticketsforstudents.net>, <cheapticketsss.com>, <cheapticketsz.com>, <cheaptickeus.com>, <cheaptickews.com>, <cheapticnets.com>, <cheaptifckets.com>, <cheaptiockets.com>, <cheaptiokets.com>, <cheaptirkets.com>, <cheaptixckets.com>, <cheaptlickets.com>, <cheapttckets.com>, <cheapztickets.com>, <cheastickets.com>, <cheaxptickets.com>, <chedptickets.com>, <chepaptickets.com>, <chesaptickets.com>, <cheuptickets.com>, <chfeaptickets.com>, <chneaptickets.com>, <chteaptickets.com>, <chyeaptickets.com>, <cseaptickets.com>, <eheaptickets.com>, <fcheaptickets.com>, <orbithz.com>, <orbitzbusiness.net>, <orbitzrecordlocator.com>, <orkitz.com>, <ororbitz.com>, <sorbitz.com>, <theaptickets.com>, and <wheaptickets.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: May 13, 2013.
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