Orbitz Worldwide, LLC v. Gerard Brady
Claim Number: FA1308001514247
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Gerard Brady (“Respondent”), Ireland.
REGISTRARS AND DISPUTED DOMAIN NAMES
The domain names at issue are <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, and <cheapytickets.com>, registered with Enom, Inc., and <cheaptickett.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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 12, 2013; the National Arbitration Forum received payment on August 12, 2013.
On August 12, 2013, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, and <cheapytickets.com> domain names are registered with Enom, Inc., and that Respondent is the current registrant of the names. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 24, 2013, Moniker confirmed by e-mail to the National Arbitration Forum that the <cheaptickett.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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 24, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 15, 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@chealptickets.com, postmaster@cheapticketds.com, postmaster@cheapticketsa.com, postmaster@cheapticketsw.com, postmaster@cheapytickets.com, postmaster@cheaptickett.com. Also on September 24, 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 October 21, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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" 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.
1. Complainant is a leading global online travel company, originally formed in the United States in 1999.
2. Complainant owns various subsidiaries and customer brands including Orbitz, Cheap Tickets, ebookers, HotelClub, RatesToGo, the Away Network, and corporate travel brand Orbitz for Business.
3. Complainant has rights in the CHEAP TICKETS and CHEAPTICKETS.COM marks through its registrations with the United States Patent and Trademark Office (“USPTO”).
a. CHEAP TICKETS
i. Reg. No. 2,021,749 registered December 10, 1996.
b. CHEAPTICKETS.COM
i. Reg. No. 2,665,841 registered December 24, 2002.
4. Respondent’s <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, and <cheaptickett.com> disputed domain names are confusingly similar to Complainant’s CHEAP TICKETS and CHEAPTICKETS.COM marks.
a. Respondent’s disputed domain names are typosquatted versions of Complainant’s marks.
b. Respondent’s disputed domain names vary from Complainant’s marks by the inclusion, subtraction or substitution of a single character, or the rearranging of characters.
5. Respondent has no rights or legitimate interests in the <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, and <cheaptickett.com> domain names.
a. Respondent is not commonly known by the disputed domain names.
b. Respondent has no trademark or intellectual property rights in the disputed domain names.
c. The WHOIS information for the disputed domain names lists “Gerard Brady” as Registrant.
d. Complainant has not given Respondent permission to use its registered marks in any way.
e. Respondent uses some of the disputed domain names to redirect Internet users to websites featuring generic links to third-party websites, some of which directly compete with Complainant.
f. Respondent registered the disputed domain names after Complainant already had rights in the CHEAP TICKETS and CHEAPTICKETS.COM marks.
6. Respondent registered and is using the <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, and <cheaptickett.com> domain names in bad faith.
a. Respondent’s typosquatting behavior is evidence of bad faith.
b. Respondent uses the disputed domain names to resolve to a website featuring generic click-through links from which Respondent likely receives revenue.
c. Respondent’s disputed domain names resolve to websites that offer products that compete with Complainant.
d. Respondent’s use of the disputed domain names diverts Internet users away from Complainant, to a third-party website, thus disrupting Complainant’s business.
e. Some of the websites resolving from the disputed domain names feature Complainant’s marks spelled correctly.
f. Respondent holds registrations on domain names not affiliated with this Complaint that appear to be straightforward examples of typosquatting.
1. The Panel notes that the disputed domain names were registered on the following dates:
a. <cheaptickett.com> created on November 24, 2002
b. <cheapytickets.com> created on July 19, 2004
c. <cheapticketsw.com> created on July 11, 2004
d. <cheapticketsa.com> created on July 11, 2004
e. <cheapticketds.com> created on July 11, 2004
<chealptickets.com> created on August 11, 2004
1. Respondent’s <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, and <cheaptickett.com> domain names are confusingly similar to Complainant’s CHEAP TICKETS mark.
2. Respondent does not have any rights or legitimate interests in the <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, and <cheaptickett.com> domain names.
3. Respondent registered or used the <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, and <cheaptickett.com> domain names 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 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.
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.”).
Complainant states that it is a leading global online travel company, originally formed in the United States in 1999. Complainant says it owns various subsidiaries and customer brands including Orbitz, Cheap Tickets, ebookers, HotelClub, RatesToGo, the Away Network, and corporate travel brand Orbitz for Business. Complainant claims to have rights in the CHEAP TICKETS and CHEAPTICKETS.COM marks through its registrations with the USPTO.
CHEAP TICKETS
Reg. No. 2,021,749 registered December 10, 1996.
CHEAPTICKETS.COM
Reg. No. 2,665,841 registered December 24, 2002.
Previous panels have found that providing evidence of a registration for a mark with the USPTO is sufficient to establish rights in a given mark under Policy ¶ 4(a)(i). See Enter. Rent-A-Car Co. v. David Mizer Enters., Inc., FA 622122 (Nat. Arb. Forum Apr. 14, 2006) (finding that the complainant’s registration of the ENTERPRISE, ENTERPRISE RENT-A-CAR, and ENTERPRISE CAR SALES marks with the USPTO satisfied the requirement of demonstrating rights in the mark under consideration pursuant to Policy ¶ 4(a)(i)). The Panel notes that it is irrelevant whether the complainant has registered its mark in a respondent’s location, only that complainant can establish rights in some jurisdiction. See KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of Policy ¶ 4(a)(i) whether the complainant’s mark is registered in a country other than that of the respondent’s place of business). The Panel concludes that Complainant has rights in the CHEAP TICKETS and CHEAPTICKETS.COM marks under Policy ¶ 4(a)(i).
Complainant alleges that Respondent’s <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, and <cheaptickett.com> domain names are confusingly similar to Complainant’s CHEAP TICKETS and CHEAPTICKETS.COM marks. Complainant argues that the disputed domain names differ from Complainant’s CHEAP TICKETS mark by a single character, or misspelling. The Panel notes that the <cheaptickett.com> domain name replaces the “s” in “tickets” with the letter “t.” The Panel further notes that the remaining <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, and <cheapytickets.com> domain names all add an additional letter to Complainant’s CHEAP TICKETS mark. The Panel notes that all of the disputed domain names feature the generic top-level domain (“gTLD”) (“.com”) and eliminate the space between the words “Cheap” and “Tickets.” Previous panels have found that adding gTLDs, removing spaces, adding letters, or misspelling a complainant’s mark is not sufficient to differentiate a disputed domain name from a given mark. 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 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 Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Nat. Arb. Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”). The Panel concludes that Respondent’s <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, and <cheaptickett.com> domain names are confusingly similar to Complainant’s CHEAP TICKETS mark under Policy ¶ 4(a)(i).
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 shifts to Respondent to show it does have 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 because Respondent is not commonly known by the domains under Policy ¶ 4(c)(ii). Complainant contends that Respondent has no trademark or intellectual property rights in the disputed domain names. Complainant states that the WHOIS information lists Respondent as “an entity other than the trademark associated with Complainant.” The Panel notes that the WHOIS information for the disputed domain names lists “Gerard Brady” as Registrant. Complainant further claims that it does not sponsor Respondent and that Respondent is not affiliated with Complainant in any way. Complainant assures the Panel that it has not given Respondent permission to use Complainant’s marks in a domain name. Previous panels have found that a respondent was not commonly known by a domain name where there was no indication on the record, including the WHOIS information, suggesting that respondent was commonly known by the disputed domain name. 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 that it is commonly known by the domain name). The Panel concludes that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
Complainant contends that Respondent has no rights or legitimate interests in the <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, or <cheaptickett.com> domain name because Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain names under Policy ¶¶ 4(c)(i) or 4(c)(iii). Complainant claims that Respondent uses the disputed domain names to redirect Internet users to websites featuring generic links to third-party websites, some of which compete with Complainant’s business. Complainant further claims that Respondent collects pay-per-click fees from the links present on the websites resolving from the disputed domain names. The Panel notes that the disputed domain names feature links relating to Complainant and Complainant’s business. E.g.:
The <chealptickets.com> domain name features links including “Cheapest Airfare,” “Cheap Tickets,” and “Discount Airline Ticket.”
The <cheapticketds.com> domain name features links such as “Cheapest Airlines Tickets” and “Air Fare Tickets.”
The <cheapticketsa.com> domain name features the links “Cheapest Ticket” and “Cheap Air Ticket.”
The <cheapticketsw.com> domain name features the links , “Cheap Air Lines Tickets,” “Cheapest Airline Tickets,” and “Cheap Airline Tickets To.”
The <cheaptickett.com> domain name features links including “Cheap Airline Tickets” and “Cheap Tickets.”
The <cheapytickets.com> domain name displays the links, “Cheap Air Tickets” and “Flight Cheap Tickets.”
The Panel notes that previous UDRP panels have found that featuring a series of links to competing third parties, and gaining revenue from the links, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name. See ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees. . . . is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”). The Panel concludes that Respondent has no rights or legitimate interests in the <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, or <cheaptickett.com> domain name because it is not making a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the domain names.
Complainant argues that Respondent has registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iii). Complainant contends that Respondent features pay-per-click links on its resolving websites to promote businesses and products that compete with Complainant. Complainant contends that Respondent’s use diverts potential customers of Complainant’s away from Complainant’s legitimate business and to the third-party links present on Respondent’s resolving websites. Complainant states that diverting Internet users away from Complainant’s business disrupts its legitimate business in bad faith. Previous panels have found that using a disputed domain name to divert Internet users to competitors of a complainant indicates bad faith use and registration. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”). The Panel concludes that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iii).
Complainant asserts that Respondent has registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iv). Complainant argues that Respondent is using the disputed domain names to resolve to websites featuring pay-per-click links from which Respondent receives revenue from Internet users who are misdirected to Respondent’s websites when attempting to view Complainant’s authentic websites. Previous panels have found bad faith use and registration when a respondent uses a confusingly similar domain name to provide links that compete with a complainant’s business and commercially benefit respondent. 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). The Panel concludes that Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iv).
Complainant asserts that Respondent’s <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, and <cheaptickett.com> disputed domain names are straightforward examples of typosquatting. The Panel sees that the disputed domain names differ from Complainant’s registered mark by the addition of a single letter, or the misspelling of Complainant’s mark. The Panel notes that previous panels have traditionally found typosquatting where there is a disputed domain name representing a typographical error with respect to a complainant’s mark or a correlation between an incorrect letter found in the disputed domain name and its placement on a computer keyboard near the correct letter as found in the complainant’s mark. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel concludes that Respondent’s behavior constitutes typosquatting and supports a finding of bad faith use and registration.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chealptickets.com>, <cheapticketds.com>, <cheapticketsa.com>, <cheapticketsw.com>, <cheapytickets.com>, and <cheaptickett.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: November 1, 2013
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