Priceline.com, Inc. v. Above.com Legal
Claim Number: FA1403001547289
Complainant is Priceline.com, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Legal (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pricelinee.com>, registered with ABOVE.COM PTY LTD.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 6, 2014; the National Arbitration Forum received payment on March 6, 2014.
On March 7, 2014, ABOVE.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <pricelinee.com> domain name is registered with ABOVE.COM PTY LTD. and that Respondent is the current registrant of the name. ABOVE.COM PTY LTD. has verified that Respondent is bound by the ABOVE.COM PTY LTD. 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 March 12, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 1, 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@pricelinee.com. Also on March 12, 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 April 7, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a leading online travel company that offers hotel and accommodation reservations at over 295,000 properties worldwide. Complainant was launched in the United States in 1998 and now provides online travel services in over 180 countries and territories, receiving over 9 million unique visitors each month. Complainant owns various United States trademark registrations for PRICELINE, PRICELINE.COM, and related marks.
Complainant contends that the disputed domain name <pricelinee.com> is confusingly similar to its registered trademarks, characterizing the domain name as an instance of “typosquatting.” Complainant contends further that Respondent has no rights or legitimate interests in the disputed domain name, on the grounds that (inter alia) Respondent has not been commonly known by the domain name; Complainant has not authorized Respondent to use its marks; Respondent has used the domain name to redirect Internet users to a website featuring links to third-party websites, some of which compete directly with Complainant; and the domain name as registered no earlier than 2003, significantly after both the first use in commerce and the registration of Complainant’s marks. Finally, Complainant contends that the domain name was registered and is being used in bad faith, based upon (inter alia) Respondent’s alleged typosquatting; Respondent’s use of the domain name for a click-through website containing links to competing services; and Respondent’s use of falsified or incorrect contact information in the Whois record for the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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.
Preliminary Issue
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.”). For the following reasons, however, the Panel is not inclined to rely upon allegations set forth in the Complaint in this proceeding notwithstanding Respondent’s failure to submit a response.
Complainant’s representative in this proceeding is CitizenHawk, Inc., an entity that has represented complainants in hundreds of previous proceedings under the Policy, including one that was before the present Panelist. See Letstalk.com, Inc. v. Inofirma, Ltd c/o Domain Administrator, FA 1310279 (Nat. Arb. Forum Apr. 21, 2010). This Panelist expressed concern about the manner in which the Complaint in that case had been prepared:
Having carefully reviewed Complainant’s initial submission, the Panel believes that it was prepared by some sort of automatic process with little or no human review. For example, the Complaint refers throughout to “Complainant’s Mark(s)” and “Disputed Domain Name(s),” even though there is only one relevant mark and one domain name in dispute. The Complaint includes an obviously false contention regarding the timing of the registration of the disputed domain name, and includes other extraneous boilerplate material (for example, argument and authorities for the proposition that a top-level domain is irrelevant to the question of identicality or confusing similarity—clearly inapplicable in this case, where the trademark includes “.com”).
Based in part upon the apparent lack of care devoted to the preparation of the Complaint, the Panel declined to consider the Complainant’s Additional Submission in Letstalk.com.
The Complaint in the present proceeding appears to have been prepared with a
similar lack of care. Consider, for example, the following allegation:
iii. The Disputed Domain Name(s) (is/are) confusingly similar to Complainant's Mark(s) because (it/they) differ(s) by only a single character from Complainant's Mark(s), or because it differs by only the juxtaposition of two characters when compared to Complainant's Mark(s). For clarification, the Disputed Domain Name(s) contain(s) either:
[i.] the addition of one extra character, or...
[ii.] the removal of one character, or...
[iii.] one character which is incorrect, or...
[iv.] two juxtaposed characters as compared to Complainant's Mark(s).
Amended Complaint at 8 (brackets and ellipses in original).
Throughout the Complaint, the disputed domain name <pricelinee.com> is referred to as “the Disputed Domain Name(s)”—for example, “Respondent has caused the website(s) reachable by (some or all of) the Disputed Domain Name(s) to display Complainant's Mark(s) spelled correctly (even though the domain name(s) is a misspelled version of the same mark(s)).” Id. at 12.
These references suggest that the Complaint was prepared using either a poorly programmed automated process or a boilerplate form, and in either case was not proofread before it was submitted.
Furthermore, the Complaint identifies Complainant’s representative only as “CitizenHawk, Inc.,” with no indication of any persons associated with either Complainant or CitizenHawk who were responsible for its preparation. The Complaint concludes with the certification required by paragraph 3(b)(xiv) of the Rules, which requires that the certification by followed by the signature of the Complainant or its authorized representative. The certification here is followed by an image that presumably is someone’s signature, but with no indication to whom it belongs, let alone whether that person is associated with Complainant or its authorized representative.
Finally, the Annex to the Complaint begins with a “Schedule of Annexed Exhibits” comprising 16 items, identified as Exhibits A through P inclusive, with a brief description of each item. Yet there are only 10 items actually included in the Annex; Exhibits F, G, and M through P do not exist, even though they are listed and described in the schedule.
These concerns do not preclude the Panel from considering the matter before it, but they do cast considerable doubt upon the care with which the Complaint was prepared and thus upon Complainant’s credibility. As a result, the Panel is extremely reluctant to rely upon any of the representations made in the Complaint, and considers them only to the extent that they are clearly supported by accompanying evidence.
The disputed domain name is identical to Complainant’s PRICELINE.COM mark, but for the addition of an extra letter “e”. The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark. See Priceline.com, Inc. v. Open Water Enterprises Ltd. c/o Louis S, FA 1303930 (Nat. Arb. Forum Mar. 10, 2010) (finding <epriceline.com> confusingly similar to PRICELINE.COM); Victoria's Secret v Personal, FA 96491 (Nat. Arb. Forum Feb. 27, 2001) (finding <victoriasecrete.com> confusingly similar to VICTORIA’S SECRET).
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The evidence before the Panel suffices to make a prime facie case, and Respondent has failed to come forward with any evidence of rights or legitimate interests. The Panel finds that Complainant has met its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name “primarily for the purpose of disrupting the business of a competitor.” Under paragraph 4(b)(iv), bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s registration of a domain name that is nearly identical to Complainant’s mark, together with the use of that domain name to link to commercial websites that compete with Complainant, is indicative of bad faith under both of these provisions of the Policy. See, e.g., Priceline.com, Inc. v. Open Water Enterprises Ltd. c/o Louis S, supra. The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <pricelinee.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 11, 2014
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