TripAdvisor, LLC v. Zhong Wan / Wanzhongmedia
Claim Number: FA1506001623450
Complainant is TripAdvisor, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Zhong Wan / Wanzhongmedia (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tripadviso4.com>, registered with Eurodns S.A.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 9, 2015; the Forum received payment on June 9, 2015. The original Complaint dealt with seven domain names. Six of the disputed domain names were in pending redemption status and unable to be locked. Therefore the Forum was unable to administer a dispute over those domain names.
On June 10, 2015, Eurodns S.A. confirmed by e-mail to the Forum that the <tripadviso4.com> domain name is registered with Eurodns S.A. and that Respondent is the current registrant of the name. Eurodns S.A. has verified that Respondent is bound by the Eurodns S.A. 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 July 6, 2015 Complainant submitted a Complaint to the Forum involving only the <tripadviso4.com> domain name.
On July 6, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 27, 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@tripadviso4.com. Also on July 6, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On July 30, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
Complainant owns the TRIPADVISOR mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,171,193, registered November 14, 2006). Complainant uses the TRIPADVISOR mark in connection with providing an online computer database in the field of travel information services. The <tripadviso4.com> domain name is confusingly similar to the TRIPADVISOR mark, as Respondent has simply swapped the letter “r” from the mark for the number “4,” and attached the generic top-level domain (“gTLD”) “.com.” Respondent has engaged in typosquatting.
Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, as evidenced by the available WHOIS information. Further, Respondent has been neither licensed nor authorized to use the TRIPADVISOR mark. Respondent has not provided a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name. Respondent uses the disputed domain name to redirect Internet users to Complainant’s own website, which is in violation of Complainant’s affiliate program agreement between Complainant and Respondent.
Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii). Respondent has offered the disputed domain name for sale to the public. Respondent has engaged in a pattern of bad faith registrations, as demonstrated by the numerous UDRP decisions against Respondent. Respondent uses the disputed domain name to attract Internet users to its own website, which then redirects to Complainant’s website, for commercial gain. As a member of Complainant’s affiliate program, Respondent must have had actual notice of Complainant’s rights in the TRIPADVISOR mark when it registered the disputed domain name. Respondent’s typosquatting behavior is further evidence of Respondent’s bad faith.
Respondent
Respondent did not submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <tripadviso4.com> domain name.
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 uses the TRIPADVISOR mark in connection with providing an online computer database in the field of travel information services. Complainant states that it owns the TRIPADVISOR mark through its trademark registrations with the USPTO (e.g., Reg. No. 3,171,193, registered November 14, 2006). Complainant argues that these registrations are sufficient evidence of its rights in the TRIPADVISOR mark under Policy ¶ 4(a)(i). Past panels have agreed with this argument, even where a respondent lives or operates in a different country. 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). Accordingly, the Panel finds Complainant has rights in the TRIPADVISOR mark under Policy ¶ 4(a)(i).
Complainant argues that the <tripadviso4.com> domain name is confusingly similar to the TRIPADVISOR mark, as the domain name is created by swapping the letter “r” from the mark for the number “4,” and adding the gTLD “.com.” Complainant claims that the disputed domain name appears to be a classic example of typosquatting. Past panels have held that the addition of a gTLD, such as “.com,” is irrelevant to Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Past panels have also held that swapping a letter for a number, such as swapping the letter “r” for the number “4” in this case, is not a significant change according to Policy ¶ 4(a)(i). See Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000) (finding that the domain name <0xygen.com>, with zero in place of letter “O,” “appears calculated to trade on Complainant’s name by exploiting likely mistake by users when entering the url address”). The Panel therefore finds that the <tripadviso4.com> domain name is confusingly similar to the TRIPADVISOR mark pursuant to Policy ¶ 4(a)(i).
Complainant has proved this element.
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.”).
Complainant argues that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii). Complainant asserts that Respondent is not commonly known by the disputed domain name and that Respondent has never been licensed or authorized to use the TRIPADVISOR mark. Complainant points to the available WHOIS information, which lists “Zhong Wan” as registrant of record for the disputed domain name. Respondent has not submitted a response to refute any of Complainant’s contentions. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name according to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant argues that Respondent has failed use the domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Rather, Complainant urges that Respondent uses the disputed domain name to redirect to Complainant’s own website, in violation of the affiliate agreement between Complainant and Respondent. Based on this uncontested argument, the Panel finds that Respondent is not using the domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name according to Policy ¶¶ 4(c)(i) and 4(c)(iii). See Sports Auth. Mich., Inc. v. Domhold Co., FA 135011 (Nat. Arb. Forum Jan. 9, 2003) (finding that registering a domain name which differs by one letter from the complainant’s commercial website, and using that domain name to redirect Internet consumers to the complainant’s website as a part of the complainant’s affiliate program is not a bona fide offering of goods or services nor a noncommercial use of the domain name).
Complainant has proved this element.
Complainant alleges that Respondent has registered and is using the disputed domain name in bad faith according to Policy ¶ 4(a)(iii). Complainant argues that Respondent has offered the disputed domain name for sale to the general public, which demonstrates bad faith pursuant to Policy ¶ 4(b)(i). Panels have agreed with Complainant’s argument, in that offering a confusingly similar disputed domain name for sale to the general public can be considered bad faith pursuant to Policy ¶ 4(b)(i). See CBS Broad. Inc. v. Worldwide Webs, Inc., D2000-0834 (WIPO Sept. 4, 2000) (“There is nothing inherently wrongful in the offer or sale of domain names, without more, such as to justify a finding of bad faith under the Policy. However, the fact that domain name registrants may legitimately and in good faith sell domain names does not imply a right in such registrants to sell domain names that are identical or confusingly similar to trademarks or service marks of others without their consent”). Therefore, the Panel finds that Respondent has acted in bad faith under Policy ¶ 4(b)(i).
Complainant claims that Respondent has engaged in a pattern of bad faith registrations of disputed domain names. As evidence of this alleged pattern, Complainant has highlighted numerous UDRP decisions in which panels held against Respondent. Some of the decisions against Respondent include: Capital One Financial Corp. v. Wanzhongmedia / Zhong Wan; Gap INC v. Zhong Wan / Wanzhongmedia; and Tumblr, Inc. v. Zhong Wan / Wanzhongmedia. Id. The Panel finds that this is evidence of bad faith under Policy ¶ 4(b)(ii). See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”). The Panel therefore finds that Respondent has engaged in bad faith according to Policy ¶ 4(b)(ii).
In light of the affiliate agreement between Complainant and Respondent, coupled with Respondent’s redirection of Internet users to Complainant’s own website, Complainant claims that it is inconceivable that Respondent registered the disputed domain name without actual and/or constructive knowledge of Complainant’s rights in the TRIPADVISOR mark. While panels have concluded that constructive notice is not sufficient to support a bad faith finding, the Panel finds that, the available evidence shows Respondent had actual knowledge of the mark and Complainant's rights. Therefore, the Panel finds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See 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)."
Complainant argues that Respondent’s typosquatting behavior is further evidence of Respondent’s bad faith under Policy ¶ 4(a)(iii). Respondent has simply swapped the number “4” in place of the letter “r” in Complainant’s mark. Complainant claims that Respondent is thus capitalizing on simple typing mistakes made by Internet users. The Panel agrees with Complainant’s contention, and finds that Respondent has engaged in typosquatting, which is further evidence of bad faith pursuant to Policy ¶ 4(a)(iii). 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 and use under Policy ¶ 4(a)(iii)).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <tripadviso4.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: July 31, 2015
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