TripAdvisor LLC v. Aditya Roshni / Web Services Pty
Claim Number: FA1411001588069
Complainant is TripAdvisor LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Aditya Roshni / Web Services Pty (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tripqdvisor.com>, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 3, 2014; the National Arbitration Forum received payment on November 3, 2014.
On November 4, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <tripqdvisor.com> 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 10, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 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@tripqdvisor.com. Also on November 10, 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 December 8, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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
1. Respondent’s <tripqdvisor.com> domain name is confusingly similar to Complainant’s TRIPADVISOR mark.
2. Respondent does not have any rights or legitimate interests in the <tripqdvisor.com> domain name.
3. Respondent registered and uses the <tripqdvisor.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Respondent registered the disputed domain name on May 10, 2006, and uses it to redirect Internet users to a website that features generic links to third-party websites, some of which directly compete with Complainant’s business.
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.”).
The Panel finds that Complainant’s USPTO registrations satisfy the requirement of Policy ¶ 4(a)(i) to show rights in a mark, even though the record indicates that Respondent operates in India. 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).
Respondnet’s <tripqdvisor.com> domain name has simply substituted the letter “q” for the “a” in Complainant’s mark, and added the generic top-level domain (“gTLD”) “.com.” Previous panels have generally found that a domain name differing from a mark by a single letter does not escape confusingly similarity, and that the affixation of a gTLD is irrelevant to the Policy ¶ 4(a)(i) analysis. 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”); 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). Thus, the Panel finds that Respondent’s <tripqdvisor.com> domain name is confusingly similar to Complainant’s TRIPADVISOR mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 alleges that Respondent is not commonly known by the <tripqdvisor.com> domain name. The WHOIS information identifies “Adita Roshni” as the registrant of the disputed domain name. Complainant states that Respondent is neither licensed nor authorized to use the TRIPADVISOR mark. Given the lack of evidence to infer otherwise, the Panel finds that Respondent is not commonly known by the <tripqdvisor.com> domain name pursuant to Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant also argues that Respondent has not provided any bona fide offering of goods or services, or made a legitimate noncommercial or fair use of the disputed domain name. Complainant alleges that Respondent uses the disputed domain name to redirect confused Internet users to its own website that contains a variety of different links, some of which directly compete with Complainant. The Panel notes that the website resolving from <tripqdvisor.com> contains link such as “travago” and “travelzoo.” Previous panels have refused to find a bona fide offering of goods or services, or a legitimate noncommercial or fair use where the disputed domain name was used to display links that compete with the complainant. 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).”). Therefore, the Panel finds that Respondent’s use of the disputed domain name does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant shows that Respondent has placed a general offer to sell the disputed domain name on the WHOIS information of the disputed domain name. Prior panels have treated offers to sell a disputed domain name as signs of bad faith under Policy ¶ 4(b)(i). See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”). The Panel likewise finds that Respondent’s offer to sell the disputed domain name is bad faith pursuant to Policy ¶ 4(b)(i).
Complainant argues that Respondent has engaged in a pattern of bad faith registration and use of domain names. The Panel notes several adverse UDRP decisions involving Respondent and thus finds that Respondent has acted in bad faith pursuant to Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
Respondent uses the disputed domain name to display a variety of links to third-party websites, some of which directly compete with Complainant’s business. The Panel finds that this disrupts Complainant’s business in bad faith under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Complainant contends that Respondent uses the disputed domain name to attract users to its own website for “pay-per-click” fees from consumers clicking on the links posted on Respondent’s website. Generally, panels have held that this constitutes bad faith under Policy ¶ 4(b)(iv). 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).”). Thus, the Panel finds that Respondent’s use of the disputed domain name to attract Internet users to Respondent’s own website for its own commercial gain is evidence of bad faith under Policy ¶ 4(b)(iv).
Respondent’s <tripqdvisor.com> domain name is also a classic example of typosquatting, meant to take advantage of typographical errors, and motivated by bad faith. 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 finds thus finds further bad faith pursuant to Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied 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 <tripqdvisor.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 11, 2014
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