AGIP, LLC Limited Liability Company Delaware v. Above.com Domain Privacy
Claim Number: FA1412001595022
Complainant is AGIP, LLC Limited Liability Company Delaware (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <adgoda.com>, <agodabooking.com>, <agodahotel.com>, and <hagoda.com>, registered with Above.Com Pty Ltd.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 12, 2014; the National Arbitration Forum received payment on December 12, 2014.
On December 16, 2014, Above.Com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <adgoda.com>, <agodabooking.com>, <agodahotel.com>, and <hagoda.com> domain names are registered with Above.Com Pty Ltd. and that Respondent is the current registrant of the names. 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 December 17, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 6, 2015 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@adgoda.com, postmaster@agodabooking.com, postmaster@agodahotel.com, postmaster@hagoda.com. Also on December 17, 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 January 12, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Kenneth L. Port 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
Complainant alleges that the domain names <adgoda.com>, <agodabooking.com>, <agodahotel.com>, and <hagoda.com> were all registered and are being used in bad faith, that they are confusingly similar to Complainant’s registered trademark AGODA and that Respondent has no rights or legitimate interests in or to its registered domain names. Complainant alleges that Respondent’s registered domain names consist of simple misspellings of the AGODA mark or the taking of the entire mark with the addition of a highly relevant descriptive term.
Complainant applied to register the mark AGODA with the United States Patent and Trademark Office ("USPTO"). This mark issued on January 31, 2006 as Reg. No. 3,054,915.
Complainant states that it operates a booking and reservation-making concern under the AGODA trademark.
B. Respondent
Respondent failed to submit a Response in this proceeding. As Complainant’s allegations are reasonable, this Panel has no reason to not accept them as true.
As Respondent has failed to submit a Response in these proceedings and as Complainant’s allegations are reasonable, this Panel accepts them as true. As such, this Panel finds that each and every domain name at issue in this proceeding is identical or confusingly similar to Complainant’s registered trademark, Respondent has no rights or legitimate interests in or to the domain names and that the Respondent registered and is using the domain names 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 domain names <adgoda.com>, <agodabooking.com>, <agodahotel.com>, and <hagoda.com> are confusingly similar to the Complainant’s registered trademark AGODA. Each domain name consists of a mere misspelling of the registered trademark or the taking of the entire mark with the addition of a highly relevant descriptive term.
The Panel finds that the <adgoda.com> and <hagoda.com> domain names to be confusingly similar in that they consist of mere misspellings of AGODA in some fashion and add the gTLD. See, e.g., Granarolo S.p.A. v. Dinoia, FA 649854 (Nat. Arb. Forum Apr. 17, 2006) (finding that the <granarolo.com> domain name was confusingly similar to the complainant’s registered G GRANAROLO mark). The Panel also finds that the <agodabooking.com> and <agodahotel.com> domain names are confusingly similar in that the entire AGODA mark is taken and a term descriptive of the AGODA services is then added after the mark. See Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark).
As such, the Panel concludes that Complainant has satisfied the thresholds of Policy ¶ 4(a)(i) and that the domain names herein are confusingly similar to Complainant’s registered trademark.
As Respondent has failed to file a response, the Panel accepts as true Complainant’s allegations regarding the claim that Respondent has no rights or legitimate interests in or to any of the domain names herein.
Accordingly, it is reasonable to conclude that Respondent is not commonly known by the names <adgoda.com>, <agodabooking.com>, <agodahotel.com>, and <hagoda.com>, nor does any license exist that creates in Respondent a legitimate right to call itself by the AGODA mark. The Panel takes note that “Above.com” is listed in the WHOIS archives associated with these domain names. This Panel agrees that there is no evidence to suggest that Respondent has been commonly known by any of these names in any meaningful manner. See LawyerLocate.ca Inc v. J Kirby Inwood / CanLaw, FA 1496334 (Nat. Arb. Forum June 20, 2013) (“Respondent’s name is J Kirby Inwood and his organization’s name is CanLaw. There is no evidence Respondent is known by the Domain Names nor by the names Lawyerlocate or Lawyerlocate.ca.”).
Complainant argues that the <adgoda.com>, <agodabooking.com>, <agodahotel.com>, and <hagoda.com> domain names are used for commercial purposes and that these purposes are not bona fide because the websites associated with the domain names promote generic template-style advertisements. The Panel concludes that these domain names resolve to websites littered with hotel and booking-related advertisements leading to competing endeavors. See Compl., at Attached Ex. H. In United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007). The Panel there found competing web links to fall far short of the kind of bona fide offering envisioned under Policy ¶ 4(c)(i). This Panel concludes that the use of the domain names herein to promote competing goods does not constitute a legitimate right or interest in or to the domain names.
As such, this Panel concludes that the Respondent has no rights or legitimate interests in any of the domain names herein.
It appears from the record that Respondent is attempting to sell the <adgoda.com>, <agodabooking.com>, <agodahotel.com>, and <hagoda.com> domain names sold off for a profit. See Compl., at Attached Ex. I. It appears from Complainant’s own allegations that only <adgoda.com>, <agodahotel.com>, and <hagoda.com> domain names were solicited for sale on the open market. (See Compl., at Attached Ex. I). As such, this Panel finds that there is evidence to find that the three domain names (<adgoda.com>, <agodahotel.com>, and <hagoda.com>) were registered in bad faith under Policy ¶ 4(b)(iii). See Pocatello Idaho Auditorium Dist. v. CES Mktg. Group, Inc., FA 103186 (Nat. Arb. Forum Feb. 21, 2002) ("[w]hat makes an offer to sell a domain [name] bad faith is some accompanying evidence that the domain name was registered because of its value that is in some way dependent on the trademark of another, and then an offer to sell it to the trademark owner or a competitor of the trademark owner").
Respondent is also allowing competitive advertising to appear on the domain name’s websites—suggestive of an intent to disrupt the commercial operations stemming from the AGODA mark. The Panel agrees that Exhibit H shows websites dedicated to redirecting users to competing online offers. This Panel finds that Respondent’s objective of sending users to competing booking services is suggestive of bad faith under Policy ¶ 4(b)(iii) by commercial disruption. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Furthermore, it is clear from the record that Respondent seeks to profit off a likelihood for Internet users to be confused as to the association of these infringing domain names with the legitimate long-running business done under the AGODA trademark. As seen in Exhibit H, it is clear that Respondent’s process of using confusingly similar domain names to prop up advertisement-laden template-websites is indicative of a Policy ¶ 4(b)(iii) bad faith intent to profit from a likelihood of confusion.
Finally, this Panel concludes that typosquatting played a role in the registration of some of the domain names herein. This Panel finds that in the case of <adgoda.com> and <hagoda.com>, there was clearly an intent to encapsulate domain names that merely misspelled AGODA. This Panel finds that such an intent at the time of registration suggests Policy ¶ 4(a)(iii) bad faith registration of these domain names. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration under Policy ¶ 4(a)(iii)).
As such, this Panel concludes that each and every domain name herein was registered and is being used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <adgoda.com>, <agodabooking.com>, <agodahotel.com>, and <hagoda.com> domain names be transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: January 14, 2015
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