Cleartrip Private Limited. V. Sudheer Reddy / Iween Software Solutions Pvt Ltd
Claim Number: FA1406001563768
Complainant is Cleartrip Private Limited. (“Complainant”), represented by Hari G. Ramasubramanian of iBRANDPROTECT / Domain Name Disputes India., India. Respondent is Sudheer Reddy / Iween Software Solutions Pvt Ltd (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cleartrip.us>, registered with GoDaddy.com, LLC.
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 June 10, 2014; the National Arbitration Forum received a hard copy of the Complaint on June 10, 2014.
On June 10, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <cleartrip.us> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On June 13, 2014, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of setting a deadline of July 3, 2014 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 9, 2014, 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the Rules, the 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.
Complainant
a) Complainant offers technology platform-based services that enable travelers across the globe to book hotels and air tickets completely online through their website located at <cleartrip.com>. Complainant has been in business since 2005, employs more than 400 people, and facilitates over 15,000 bookings per day across Indian and international air carriers and hotels.
b) Complainant has rights in the CLEARTRIP mark, used in connection with online travel booking services. Complainant owns registrations for the CLEAR TRIP mark with the Indian Office of the Controller-General of Patents, Designs, and Trademarks (e.g., Reg. No. 1416200 registered September 22, 2008).
c) Respondent’s <cleartrip.us> domain name is identical to Complainant’s CLEARTRIP mark. The disputed domain name incorporates Complainant’s mark in its entirety while only adding the country-code top-level domain (“ccTLD”) “.us.”
d) Respondent does not have any rights or legitimate interests in the <cleartrip.us> domain name.
a. Respondent is not commonly known by the disputed domain name, and Complainant has not authorized Respondent to use its CLEARTRIP mark in any way.
b. The <cleartrip.us> domain name resolves to a parked page. See Complainant’s Exhibit K.
e) Respondent registered and is using the <cleartrip.us> domain name in bad faith.
a. Respondent offered to sell the disputed domain name to Complainant for a price of $12,000 to $15,000. See Complainant’s Exhibit J.
b. Respondent is disrupting Complainant’s business by diverting Internet traffic to the <cleartrip.us> domain name.
c. Respondent is intentionally attempting to attract Internet users for Respondent’s own commercial gain by creating a likelihood of confusion with Complainant’s CLEARTRIP mark.
d. Respondent had knowledge of Complainant’s CLEARTRIP mark prior to registering the <cleartrip.us> domain name because Respondent resides in India and Complainant has extensive used and promoted its mark.
1. Respondent’s <cleartrip.us> domain name is confusingly similar to Complainant’s CLEAR TRIP mark.
2. Respondent does not have any rights or legitimate interests in the <cleartrip.us> domain name.
3. Respondent registered or used the <cleartrip.us> domain name 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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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(f), 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 contends it has rights in the CLEARTRIP mark, used in connection with online travel booking services. Complainant states it owns registrations for the CLEAR TRIP mark with the Indian Office of the Controller-General of Patents, Designs, and Trademarks (e.g., Reg. No. 1416200 registered September 22, 2008). Therefore, the Panel finds that Complainant has rights in the CLEARTRIP mark within the meaning of Policy ¶ 4(a)(i) because Complainant holds valid trademark registrations for the CLEARTRIP mark. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant alleges that Respondent’s <cleartrip.us> domain name is identical to Complainant’s CLEARTRIP mark. Complainant asserts that the disputed domain name incorporates Complainant’s mark in its entirety while only adding the ccTLD “.us.” Past panels have found that the addition of a ccTLD fail to distinguish a domain name that is otherwise identical to trademark. See Tropar Mfg. Co. v. TSB, FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that since the addition of the country-code “.us” fails to add any distinguishing characteristic to the domain name, the <tropar.us> domain name is identical to the complainant’s TROPAR mark). Therefore, the Panel finds that Respondent’s <cleartrip.us> domain name is identical to Complainant’s CLEARTRIP mark pursuant to 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.”).
The Panel notes that there is no evidence in the record indicating that Respondent owns any services marks or trademarks that reflect the <cleartrip.us> domain name. Therefore, the Panel finds that Respondent does not have rights or legitimate interests pursuant to Policy ¶ 4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that the respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.us> domain name); see also Pepsico, Inc. v. Becky, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or services marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i).
Complainant claims that Respondent does not have any rights or legitimate interests in the <cleartrip.us> domain name. Complainant states that Respondent is not commonly known by the disputed domain name, and Complainant has not authorized Respondent to use its CLEARTRIP mark in any way. The Panel notes that the WHOIS record for the disputed domain name lists “Sudheer Reddy” as the domain name registrant. Past panels have looked to the WHOIS record, whether the respondent was authorized to use the trademark, and the evidence on record as whole in determining whether the respondent is commonly known by the disputed 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). Therefore, because Respondent was not authorized by Complainant to use the CLEARTRIP mark, and neither the WHOIS information nor the other evidence on record indicates otherwise, the Panel finds that Respondent is not commonly known by the <cleartrip.us> domain name under Policy ¶ 4(c)(iii).
Complainant asserts that the <cleartrip.us> domain name resolves to a parked page. See Complainant’s Exhibit K. The Panel notes that the parked page contains both competing links and links unrelated to Complainant’s business. Id. Past panels determined that such a use does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute a bona fide offering of goods or services . . . or a legitimate noncommercial or fair use . . . .”). Therefore, the Panel finds that Respondent is not making a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(ii) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iv) because the <cleartrip.us> domain name resolves to a parked page featuring both competing and unrelated hyperlinks.
Complainant claims Respondent registered and is using the <cleartrip.us> domain name in bad faith. Complainant asserts that Respondent offered to sell the disputed domain name to Complainant for a price of $12,000 to $15,000. See Complainant’s Exhibit J. Past panels have found that a respondent who makes an offer to sell for an amount in excess of the out-of-pocket costs associated with the disputed domain name may be in violation of Policy ¶ 4(b)(i). See Campmor, Inc. v. GearPro.com, FA 197972 (Nat. Arb. Forum Nov. 5, 2003) (“Respondent registered the disputed domain name and offered to sell it to Complainant for $10,600. This demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(i).”). Therefore, the Panel finds that Respondent registered and is using the <cleartrip.us> domain name in bad faith under Policy ¶ 4(b)(i) because Respondent offered to sell the disputed domain name to Complainant for a sum in the range of $12,000 to $15,000.
Complainant argues Respondent is disrupting Complainant’s business by diverting Internet traffic to the <cleartrip.us> domain name. The Panel notes that the resolving website appears to contain at least two competing links for “Vacation in Malaysia” and “Kashmir Srinagar Tour 3N.” See Complainant’s Exhibit K. In prior cases, panels have held that using a disputed domain name to promote links to a complainant’s competitors demonstrates a bad faith disruption pursuant to Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). Therefore, the Panel finds Respondent is disrupting Complainant’s business in bad faith under Policy ¶ 4(b)(iii) because Respondent is operating a website featuring links to Complainant’s competitors.
Complainant alleges that Respondent is intentionally attempting to attract Internet users for Respondent’s own commercial gain by creating a likelihood of confusion with Complainant’s CLEARTRIP mark. The Panel notes that the parked page contains both competing links and links unrelated to Complainant’s business. See Complainant’s Exhibit K. In past cases, panels have determined such conduct constitutes bad faith via attraction for commercial gain by presuming the respondent is receiving click-through revenue from the links located on the resolving website. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Therefore, the Panel finds that Respondent registered and is using the <cleartrip.us> domain name in bad faith under Policy ¶ 4(b)(iv) because the disputed domain name resolves to a website displaying both competing and unrelated hyperlinks.
Complainant submits that Respondent had knowledge of Complainant’s CLEARTRIP mark prior to registering the <cleartrip.us> domain name because Respondent resides in India and Complainant has extensive used and promoted its mark. The Panel notes that constructive notice is generally regarded as insufficient to support a finding of bad faith. See Sears Brands, LLC v. Airhart, FA 1350469 (Nat. Arb. Forum Dec. 2, 2010) (stating that constructive notice generally will not suffice for a finding of bad faith). However, the Panel determines Respondent was well aware of Complainant’s mark at the time Respondent registered the disputed domain name, and the Panel concludes that Respondent had actual notice of Complainant's mark and thus registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See GO Local NC Farms, LLC v. Paul Darcy, FA 1426087 (Nat. Arb. Forum March 13, 2012) (“[A] finding of bad faith hinges squarely on the probability that it was more likely than not that [the] [r]espondent knew of, and targeted, [the] [c]omplainant’s trade mark.”); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration”).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cleartrip.us> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
July 22, 2014
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