Priceline.com LLC v. Jason Stroppel
Claim Number: FA1705001733802
Complainant is Priceline.com LLC (“Complainant”), represented by Jamie E. Sternberg of Cantor Colburn LLP, Connecticut, USA. Respondent is Jason Stroppel (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pricelineautomotive.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 30, 2017; the Forum received payment on May 30, 2017.
On May 31, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <pricelineautomotive.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 5, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 26, 2017 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@pricelineautomotive.com. Also on June 5, 2017, 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 3, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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.
A. Complainant
Complainant states that it is an Internet-based travel services provider with business headquarters in the USA. Complainant’s customers can book reservations for airline tickets, hotel rooms, rental cars, vacation packages, and other travel services on its <priceline.com> website. After its launch 19 years ago, in April 1998, Complainant’s web-based service quickly became enormously popular and successful in the USA and abroad, and has remained so. As early as the first month in which it was launched, Complainant’s website was ranked one of the world’s top ten most visited e-commerce websites, based on data reported by RelevantKnowledge Inc., a leading provider of unbiased Internet intelligence. In its January 7, 2002 issue, Yahoo! Internet Life said consumers looking for the “Best Travel Deal on the Web” should use Complainant’s Internet services at <priceline.com>. Complainant’s popularity has continued unabated to the present. Budget Travel stated in a May 19, 2009 article that the website is one of the “5 Best Travel Sites” on the Internet. Travel+Leisure named Complainant’s mobile app as one of the 50 best to optimize consumer’s vacations. Complainant has been the recipient of numerous other honors and awards. Complainant’s website receives on average 20 million unique visitors each month. Complainant accepts travel, transportation and lodging bookings from almost every country in the world. Complainant has advertised extensively since it launched in 1998.
Complainant states that it uses the PRICELINE and PRICELINE.COM marks to promote its goods and services. Complainant has rights in the marks based upon registration in the United States in, respectively, 1999 and 2011. The marks are registered in numerous other countries around the world. The PRICELINE brand has become synonymous with online travel and tourism services.
According to Complainant, the disputed domain name is confusingly similar to Complainant’s marks as it contains the PRICELINE portion of both marks and appends the descriptive term “automotive” and the generic top-level-domain (“gTLD”) “.com”. Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to register a domain name reflecting its mark. Respondent failed to use the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to Respondent’s automobile business. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent intentionally attracts Internet users to Respondent’s website by creating a likelihood of confusion through the utilization of Complainant’s marks. Respondent disrupts Complainant’s business by refusing to disable the disputed domain name. Respondent had actual knowledge of Complainant’s rights in the PRICELINE marks prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark PRICELINE dating back to 1999.
The disputed domain name was registered in 2013.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that contains links to products and services that are not directly related to those offered by Complainant.
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(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 is confusingly similar to Complainant’s marks as it contains the PRICELINE portion of both marks and merely appends the descriptive term “automotive” and the gTLD “ .com”. The addition of terms descriptive of a mark holder’s business and the addition of a gTLD are insufficient to differentiate a respondent’s domain name from a complainant’s mark. See Gillette Co. v. RFK Assocs., FA 492867 (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). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant’s PRICELINE marks per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain name: absent information in the record to the contrary, WHOIS information can substantiate a finding that a respondent is not commonly known by a disputed domain name. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (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); see also Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record names “Jason Stroppel” as the registrant of the disputed domain name. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent failed to use the dispute domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. The disputed domain name resolves to a web site offering used automobiles for sale. Use of a domain name to divert Internet users from a complainant’s website to an unrelated website does not demonstrate rights and legitimate interests in the domain name per Policy ¶¶ 4(c)(i) & (iii). See Seiko Kabushiki Kaisha v. CS into Tech, FA198795 (Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Consequently, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent intentionally attracts Internet users to Respondent’s website by creating a likelihood of confusion through the utilization of Complainant’s marks. Use of a disputed domain name to capitalize on the notoriety of a complainant’s mark evinces bad faith registration and use per Policy ¶ 4(b)(iv). See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also CNA Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). Bad faith has been found even where a respondent has commercially benefited through links unrelated to a complainant’s products and services. See Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <pricelineautomotive.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 3, 2017
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