TripAdvisor LLC v. Bin G Glu / G Design
Claim Number: FA1506001623461
Complainant is TripAdvisor LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Bin G Glu / G Design (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tripadisor.com>, registered with GoDaddy.com, LLC.
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.
On June 9, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <tripadisor.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 June 10, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 30, 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@tripadisor.com. Also on June 10, 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 8, 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 has registered the TRIP ADVISOR mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,727,627, registered June 17, 2003). The mark is used on or in connection with providing an online computer database in the field of travel information services. The <tripadisor.com> domain name is confusingly similar to the TRIP ADVISOR mark because the domain name differs from the mark only in the addition of the gTLD “.com” and the removal of the letter “v”.
Respondent has no rights or legitimate interests. Respondent is not commonly known by the disputed domain name, nor is Respondent a licensee of Complainant. Further, the domain name resolves to a webpage containing various third party links, including links that compete with Complainant.
Respondent has engaged in bad faith registration and use. Respondent is offering to sell the domain name to the public and has engaged in a pattern of bad faith registrations. Respondent is disrupting Complainant’s business by displaying competing hyperlinks on the resolving webpage. Respondent is also attempting to commercially profit from a likelihood of confusion. Lastly, Respondent is typosquatting in 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 <tripadisor.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 has registered the TRIP ADVISOR mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,727,627, registered June 17, 2003). The mark is used on or in connection with providing an online computer database in the field of travel information services. The Panel finds that Complainant’s registration with the USPTO is sufficient to establish its rights in the trademark under Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Complainant argues that the <tripadisor.com> domain name is confusingly similar to the TRIP ADVISOR mark. The domain name differs from the mark only in the addition of the gTLD “.com” and the removal of the letter “v”, the latter of which Complainant argues is a classic example of typosquatting. As a general rule, a gTLD does not distinguish a domain name from a mark. 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). Additionally, panels have found that removing a single letter from a mark and reflecting that change in a domain name results in a confusing similarity. See Guinness UDV N. Am., Inc. v. Dallas Internet Servs., D2001-1055 (WIPO Dec. 12, 2001) (finding the <smirnof.com> domain name confusingly similar to the complainant’s SMIRNOFF mark because merely removing the letter “f” from the mark was insignificant). Thus, the Panel finds that the <tripadisor.com> domain name is confusingly similar to the TRIP ADVISOR mark according 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 asserts that Respondent is not commonly known by the <tripadisor.com> domain name, nor is Respondent in possession of licensing rights that would allow it to use the TRIP ADVISOR mark in domain names. The WHOIS records lists “Bin G Glu” as the registrant of record for the disputed domain name. Additionally, the record is devoid of any evidence to indicate that Respondent is either commonly known by the disputed domain name or in possession of licensing rights. Accordingly, the Panel concludes that Respondent has no rights or legitimate interests under 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’s use of the disputed domain name fails to constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant argues that the domain name resolves to a webpage containing various third party hyperlinks, some of which compete with Complainant’s business under the TRIP ADVISOR mark. The Panel notes that the domain name resolves to a webpage containing links that read, among other things, “FIND THE BEST HOTEL D,” “ALL INCLUSIVE TRIP $699,” and “HOTEL DISCOUNTS: 60%.” Past panels have found that use of a confusingly similar domain name to host a webpage containing competing hyperlinks cannot give the respondent rights under Policy ¶¶ 4(c)(i) or (iii). 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 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).”). Thus, the Panel finds Respondent has no rights or legitimate interest in the domain name under Policy ¶¶ 4(c)(i) or (iii).
Complainant has proved this element.
Complainant argues that Respondent has engaged in bad faith registration and use of the disputed domain name. Complainant argues that Respondent has displayed bad faith under Policy ¶ 4(b)(i) by offering to sell the domain name to the public. The WHOIS information contains a message reading “TripadIsOr.com is for sale! The owner of the domain you are searching has it listed for sale.” The Panel finds such an offer is evidence of bad faith registration. 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").
Complainant argues that Respondent has displayed bad faith under Policy ¶ 4(b)(ii) by engaging in a pattern of bad faith registrations. Complainant asserts that Respondent is a serial cybersquatter, and has several adverse findings against it in UDRP proceedings. See Capital One Financial Corp. v. Bin G Glu / G Design, FA1402001542631 (Nat. Arb. Forum March 20, 2014); Priceline.com, Inc. v. Bin g Glu / G Design, FA1403001547250 (Nat. Arb. Forum April 15, 2014); Vanguard Trademark Holdings USA LLC v. Bin g Glu, FA1102001372550 (Nat. Arb. Forum April 4, 2011). Panels have found evidence of a pattern of bad faith where the respondent has been subjected to prior UDRP proceedings. See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations). Therefore, the Panel finds Respondent has a pattern bad faith, and that this is evidence of bad faith registration and use of the domain name under Policy ¶ 4(b)(ii).
Complainant claims that Respondent has displayed bad faith under Policy ¶ 4(b)(iii) by disrupting Complainant’s business. Complainant argues that the display of competing hyperlinks on the resolving webpage is particularly disruptive because it diverts Internet users who were searching for Complainant’s services. The Panel notes that the domain name resolves to a webpage containing competing hyperlinks that read, among other things, “FIND THE BEST HOTEL D,” “ALL INCLUSIVE TRIP $699,” and “HOTEL DISCOUNTS: 60%.” Prior panels have found that use of a confusingly similar domain name to host a webpage containing competing hyperlinks can consist of bad faith under Policy ¶ 4(b)(iii). 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)). Thus, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii).
Complainant argues that Respondent has displayed bad faith under Policy ¶ 4(b)(iv) by attempting to commercially profit from a likelihood of confusion. Complainant states that a likelihood of confusion exists, and that Respondent presumably profits by receiving pay-per-click fees. Where a respondent has created a likelihood of confusion, and commercially gained in the process, prior panels have found bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). The Panel finds that, as the domain name is confusingly similar to Complainant’s mark, and the resolving website displays links purporting to offer services that compete with Complainant’s, Respondent is profiting from the likelihood of confusion, and therefore finds bad faith under Policy ¶ 4(b)(iv).
Complainant argues that Respondent is typosquatting in bad faith. Complainant argues that the omission of the letter “v” in the domain name was done to intentionally take advantage of Internet users who were searching for Complainant but made a typographical error. A respondent engages in typosquatting by diverting Internet users who misspell a registered mark to a website owned by the respondent. See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003). Panels have consistently found bad faith where a respondent has engaged in typosquatting. 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)); Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form). Therefore, the Panel finds that Respondent has engaged in typosquatting, and that this 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 <tripadisor.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.), Panelist
Dated: July 13, 2015
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