Orbitz Worldwide, LLC v. Fundacion Private Whois / Domain Administrator
Claim Number: FA1312001535866
Complainant is Orbitz Worldwide, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Fundacion Private Whois / Domain Administrator (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <cheapcheaptickets.com>, <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <orbibz.com>, <orcitz.com>, <orzbitz.com>, <vheaptickets.com>, and <wwwwcheaptickets.com>, registered with Internet.Bs Corp.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as a Panelist in this proceeding.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 23, 2013; the National Arbitration Forum received payment on December 23, 2013.
On December 29, 2013, Internet.Bs Corp. confirmed by e-mail to the National Arbitration Forum that the <cheapcheaptickets.com>, <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <orbibz.com>, <orcitz.com>, <orzbitz.com>, <vheaptickets.com>, and <wwwwcheaptickets.com> domain names are registered with Internet.Bs Corp. and that Respondent is the current registrant of the names. Internet.Bs Corp. has verified that Respondent is bound by the Internet.Bs Corp. 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 January 28, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 18, 2014 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@cheapcheaptickets.com, postmaster@cheaptickdets.com, postmaster@cheapticketsnl.com, postmaster@cheapticketys.com, postmaster@cheaptickwts.com, postmaster@cheaptixkets.com, postmaster@chraptickets.com, postmaster@dcheaptickets.com, postmaster@orbibz.com, postmaster@orcitz.com, postmaster@orzbitz.com, postmaster@vheaptickets.com, and postmaster@wwwwcheaptickets.com. Also on January 28, 2014, 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 February 19, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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.
A. Complainant makes the following assertions:
1. Respondent’s <cheapcheaptickets.com>, <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <orbibz.com>, <orcitz.com>, <orzbitz.com>, <vheaptickets.com>, and <wwwwcheaptickets.com> domain names, the domain names at issue, are confusingly similar to Complainant’s CHEAP TICKETS, CHEAP TICKETS.COM and ORBITS.COM marks.
2. Respondent does not have any rights or legitimate interests in the domain names at issue.
3. Respondent registered and used the domain names at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Orbitz Worldwide, LLC, is a leading global online travel company that uses innovative technology to enable leisure and business travelers to research, plan, and book a broad range of travel products.
Complainant is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CHEAP TICKETS mark (e.g., Reg. No. 2,021,749, registered December 10, 1996); for the CHEAPTICKETS.COM mark (Reg. No. 2,665,841, registered December 24, 2002); for the ORBITZ mark (e.g., Reg. No. 2,799,051, registered December 23, 2003); and for the ORBITZ.COM mark (Reg. No. 2,951,983, registered May 17, 2005).
The disputed domain names are confusingly similar to Complainant’s marks. Respondent has no rights or legitimate interests in respect of the disputed domain names. Respondent has not been commonly known by the disputed domain names and is using the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business.
Respondent has listed the <cheapcheaptickets.com> and <cheaptickdets.com> domain names for sale and is a recalcitrant, serial cybersquatter. Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant. Respondent has registered and used the disputed domain names to attract and mislead consumers for its own profit. Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith.
Respondent registered the disputed domain names on the following dates:
i. <cheapcheaptickets.com> on December 16, 2008.
ii. <cheaptickdets.com> on January 8, 2005.
iii. <cheapticketsnl.com> on March 28, 2012.
iv. <cheapticketys.com> on August 27, 2004.
v. <cheaptickwts.com> on December 21, 2003.
vi. <cheaptixkets.com> on December 21, 2003.
vii. <chraptickets.com> on December 21, 2003.
viii. <dcheaptickets.com> on January 8, 2005.
ix. <orbibz.com> on September 18, 2008.
x. <orcitz.com> on February 1, 2009.
xi. <orzbitz.com> on March 6, 2006.
xii. <vheaptickets.com> on December 10, 2004.
xiii. <wwwwcheaptickets.com> on July 20, 2004.
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 is a leading global online travel company that uses innovative technology to enable leisure and business travelers to research, plan, and book a broad range of travel products. Complainant is the owner of trademark registrations with the USPTO for the CHEAP TICKETS mark (e.g., Reg. No. 2,021,749, registered December 10, 1996); for the CHEAPTICKETS.COM mark (Reg. No. 2,665,841, registered December 24, 2002); for the ORBITZ mark (e.g., Reg. No. 2,799,051, registered December 23, 2003); and for the ORBITZ.COM mark (Reg. No. 2,951,983, registered May 17, 2005). While Respondent appears to operate in Panama, Policy ¶ 4(a)(i) does not require Complainant to register its mark in the country in which Respondent operates, so long as it can demonstrate rights in the mark. See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). Thus, Complainant has rights in the CHEAP TICKETS, CHEAPTICKETS.COM, ORBITZ, and ORBITZ.COM marks pursuant to Policy ¶ 4(a)(i) through its registration of the marks 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, Complainant has met the requirements of Policy ¶ 4(a)(i).”).
Respondent’s <cheapcheaptickets.com>, <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <vheaptickets.com>, and <wwwwcheaptickets.com> domain names are confusingly similar to Complainant’s CHEAPTICKETS.COM mark because they differ by only a single character from Complainant’s mark. Respondent’s <cheapcheaptickets.com> , contains Complainant’s entire mark, with an added generic term “cheap.” Respondent’s inclusion of a generic term is inconsequential to a Policy ¶ 4(a)(i) analysis. See Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the <westfieldshopping.com> domain name confusingly similar because the WESTFIELD mark was the dominant element). Respondent adds an additional letter to Complainant’s CHEAPTICKETS.COM mark in its <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, and <dcheaptickets.com> domain names. This inclusion of an additional letter does not distinguish the domain names from Complainant’s mark under Policy ¶ 4(a)(i). See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)). Respondent substitutes one letter for another in its <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, and <vheaptickets.com> domain names. The substitution of letters in Complainant’s CHEAPTICKETS.COM mark is irrelevant to a Policy ¶ 4(a)(i) determination. 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”). The Panel may observe that Respondent adds “wwww” to Complainant’s CHEAPTICKETS.COM mark in its <wwwwcheaptickets.com> domain name. The addition of a “www” does not differentiate the domain names from Complainant’s mark under Policy ¶ 4(a)(i). See Register.com Inc. v. House, FA 167970 (Nat. Arb. Forum Aug. 22, 2003) (finding the prefix “www” followed by the trademark with no period separating them did not distinguish the mark and was confusingly similar). Accordingly, Respondent’s <cheapcheaptickets.com>, <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <vheaptickets.com>, and <wwwwcheaptickets.com> domain names are confusingly similar to Complainant’s CHEAPTICKETS.COM mark under Policy ¶ 4(a)(i).
Respondent’s <orbibz.com>, <orcitz.com>, and <orzbitz.com> domain names are confusingly similar to Complainant’s ORBITZ.COM mark because they differ by only a single character from Complainant’s mark. Respondent substitutes one letter for another in Complainant’s ORBITZ.COM in its <orbibz.com> and <orcitz.com> domain names. This substitution of letters in Complainant’s mark does not negate a finding of confusing similarity pursuant to Policy ¶ 4(a)(i). 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”). Respondent adds an additional character to Complainant’s ORBITZ.COM mark in its <orzbitz.com> domain name. See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)). Consequently, Respondent’s <orbibz.com>, <orcitz.com>, and <orzbitz.com> domain names are confusingly similar to Complainant’s ORBITZ.COM mark according to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been established.
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.”).
Respondent has not been commonly known by the <cheapcheaptickets.com>, <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <orbibz.com>, <orcitz.com>, <orzbitz.com>, <vheaptickets.com>, and <wwwwcheaptickets.com> domain names. The WHOIS record lists “Fundacion Private Whois / Domain Administrator” as the registrant of the disputed domain names. Respondent is not sponsored by or legitimately affiliated with Complainant in anyway. Complainant has not given Respondent permission to use Complainant’s mark in a domain name. In IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006), the panel found that respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as respondent was not authorized to register domain names featuring complainant’s mark and failed to submit evidence that it is commonly known by the domain name. Consequently, Respondent is not commonly known under the <cheapcheaptickets.com>, <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <orbibz.com>, <orcitz.com>, <orzbitz.com>, <vheaptickets.com>, and <wwwwcheaptickets.com> domain names according to Policy ¶ 4(c)(ii).
Respondent is using the <cheapcheaptickets.com>, <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <orbibz.com>, <orcitz.com>, <orzbitz.com>, <vheaptickets.com>, and <wwwwcheaptickets.com> domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent uses all of its disputed domain names to provide competing hyperlinks titled “Cheap Airfares from $95,” “Airline Ticket,” “Cheap Airline Tickets,” and others. Respondent presumably receives pay-per-click fees from these linked websites. Previous panels have determined that a respondent’s use of a domain name to offer competing hyperlinks is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”). Accordingly, the Panel finds that Respondent is not using its <cheapcheaptickets.com>, <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <orbibz.com>, <orcitz.com>, <orzbitz.com>, <vheaptickets.com>, and <wwwwcheaptickets.com> domain names for a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent has listed the <cheapcheaptickets.com> and <cheaptickdets.com> domain names for sale. The Panel notes that the websites associated with the domain names <cheapcheaptickets.com> and <cheaptickdets.com> state “BUY THIS DOMAIN. The WHOIS record for all of the domain names indicates that all of the disputed domain names are being held for sale. In Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003), the panel held that “Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).” Thus, the Panel determines that Respondent has registered and is using the domain names in bad faith under Policy ¶ 4(b)(i).
It appears that Respondent is a recalcitrant, serial cybersquatter. Searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of such behavior. See, Aeropostale Procurement Company, Inc. v. Fundacion Private Whois / Domain Administrator, FA 1528177 (Nat. Arb. Forum Dec. 2, 2013); Disney Enterprises, Inc. v. Fundacion Private Whois / Domain Administrator, FA 1528183 (Nat. Arb. Forum Dec. 9, 2013); Sony Corporation v. Fundacion Private Whois / Domain Administrator, FA 1522726 (Nat. Arb. Forum Nov. 5, 2013). Therefore, the Panel finds that Respondent’s prior UDRP proceedings resulting in findings of bad faith and transfer demonstrates bad faith use and registration under Policy ¶ 4(b)(ii).
Respondent’s advertised pay-per-click links displayed on the resolving websites promote products that compete with Complainant. Respondent is using all of its <cheapcheaptickets.com>, <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <orbibz.com>, <orcitz.com>, <orzbitz.com>, <vheaptickets.com>, and <wwwwcheaptickets.com> domain names to provide competing links such as “Cheap Airfares from $95,” “Airline Ticket,” “Cheap Airline Tickets,” and others. This use of the disputed domain names disrupts Complainant’s legitimate business and the Panel finds that Respondent has registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. Respondent adds or deletes letters in Complainant’s CHEAPTICKETS.COM or ORBITZ.COM marks in its <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <orbibz.com>, <orcitz.com>, <orzbitz.com>, <vheaptickets.com>, and <wwwwcheaptickets.com> domain names. 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 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).”). Therefore, the Panel finds that Respondent engaged in typosquatting, showing bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cheapcheaptickets.com>, <cheaptickdets.com>, <cheapticketsnl.com>, <cheapticketys.com>, <cheaptickwts.com>, <cheaptixkets.com>, <chraptickets.com>, <dcheaptickets.com>, <orbibz.com>, <orcitz.com>, <orzbitz.com>, <vheaptickets.com>, and <wwwwcheaptickets.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: January 21, 2014
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page