Fareportal Inc v. Anirban Das / Search Engine Pundits
Claim Number: FA1702001718919
Complainant is Fareportal Inc. ("Complainant"), represented by Brittany L Kaplan, United States of America. Respondent is Anirban Das / Search Engine Pundits ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cheapoair.us>, registered with BigRock Solutions Ltd.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 24, 2017; the Forum received payment on February 24, 2017.
On February 27, 2017, BigRock Solutions Ltd. confirmed by email to the Forum that the <cheapoair.us> domain name is registered with BigRock Solutions Ltd. and that Respondent is the current registrant of the name. BigRock Solutions Ltd. has verified that Respondent is bound by the BigRock Solutions Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").
On March 2, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 2017 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@cheapoair.us. Also on March 2, 2017, the Written Notice of the Complaint, notifying Respondent of the email 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 April 3, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 usTLD 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 usTLD Policy, usTLD 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.
A. Complainant
Complainant develops software for travel-related websites and provides travel-related services to the public. Complainant has used CHEAPOAIR and related marks in connection with this business since 2005, and holds various U.S. trademark registrations for these marks.
Respondent registered the disputed domain name <cheapoair.us> in November 2016. The domain name resolves to a parked page. Complainant states that Respondent is not affiliated with Complainant; has not been authorized, licensed, or otherwise permitted to use Complainant's marks; and has never been commonly known by the disputed domain name. Complainant notes that Respondent is also the registrant of <bharattravelguide.com>, suggesting that Respondent is familiar with the travel space and well-known brands in that industry such as CHEAPOAIR. Complainant contends on these grounds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent has no rights or legitimate interests in respect of the disputed domain name; and that Respondent registered and is using the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered or is being used 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 or 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 (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 disputed domain name <cheapoair.us> corresponds to Complainant's CHEAPOAIR mark, adding only the ".us" top-level domain. It is thus identical to Complainant's mark for purposes of the Policy. See, e.g., Samherji hf. v. Oscar / Ossy & Co Ltd, FA 1709094 (Forum Feb. 3, 2017) (finding <icefresh.us> identical or confusingly similar to ICEFRESH); Fareportal Inc. v. SUN Lingmin, DCO2016-0011 (WIPO Apr. 25, 2016) (finding <cheapoair.co> confusingly similar to CHEAPOAIR). The Panel so finds.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name corresponds to Complainant's mark; it was registered without authorization from Complainant; and Respondent does not appear to have made any active use of the domain name. See, e.g., AB Electrolux v. Sefa Yapici, FA 1716986 (Forum Mar. 18, 2017) (finding a lack of rights or legitimate interests in similar circumstances). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
The disputed domain name corresponds to Complainant's well-known mark, and Respondent does not appear to have made any active use of the domain name. In the absence of any explanation from Respondent, the Panel considers it reasonable to infer that Respondent registered the domain name intending to use it in a manner calculated to create and exploit confusion with Complainant's mark, most likely either by selling the domain name (paragraph 4(b)(i)) or by using it to attract Internet users seeking Complainant (paragraph 4(b)(iv)). See, e.g., Philip Morris USA Inc. v. Ernie Villa, FA 1668607 (Forum Apr. 29, 2016) (finding bad faith registration and use in similar circumstances). The Panel finds that the disputed domain name was registered or is being used in bad faith.
Having considered the three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cheapoair.us> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 11, 2017
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