Airbnb, Inc. v. Jan Everno / The Management Group II
Claim Number: FA1807001795874
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Jan Everno / The Management Group II (“Respondent”), Michigan, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnbchina.com>, registered with Whiteglove Domains, Incorporated.
The undersigned certifies that she acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding.
Hon. Carolyn Marks Johnson sits here as Panelist.
Complainant submitted a Complaint to the Forum electronically July 9, 2018; the Forum received payment July 9, 2018.
On July 10, 2018, Whiteglove Domains, Incorporated confirmed by e-mail to the Forum that the <airbnbchina.com> domain name is registered with Whiteglove Domains, Incorporated and that Respondent is the current registrant of the name. Whiteglove Domains, Incorporated verified that Respondent is bound by the Whiteglove Domains, Incorporated registration agreement and 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 10, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 30, 2018, 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@airbnbchina.com. Also on July 10, 2018, 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 August 5, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson to sit here as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum 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’s Allegations in this Proceeding:
Complainant, Airbnb, Inc. is known worldwide for its revolutionary approach to people-powered travel and hospitality. Complainant has rights in the AIRBNB mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,890,025, registered Dec. 14, 2010). See Compl. Annex I. Respondent’s <airbnbchina.com> domain name is confusingly similar to Complainant’s AIRBNB mark, as the name incorporates the mark in its entirety, adding the word “china” and the “.com” generic Top-Level Domain (“gTLD”).
Respondent has no rights or legitimate interests in the <airbnbchina.com> domain name. Respondent is not commonly known by the disputed domain name, and Complainant did not authorize or license Respondent to use the AIRBNB mark in any manner. Respondent’s use of the disputed domain name is not a bona fide offering of goods or services and it is not any legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a parked webpage, which hosts hyperlinks that redirect internet traffic to Complainant’s website in an attempt to gain commercially.
Respondent registered and is using the <airbnbchina.com> domain name in bad faith. Respondent attempts to sell the domain for an amount in excess of out-of-pocket costs. Respondent has a history of cybersquatting. Further, Respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Finally, Respondent knew of Complainant’s rights in the AIRBNB mark at the time Respondent registered and subsequently used the disputed domain name.
Respondent’s Contentions in Response:
Respondent did not submit a Response in this proceeding. The Panel notes that Respondent registered the disputed domain name May 27, 2017.
COMPLAINANT established rights and legitimate interests in the disputed domain name containing in its entirety Complainant’s protected mark.
RESPONDENT has no such rights or legitimate interests in Complainant’s protected mark or the protected mark contained in its entirety within the domain.
RESPONDENT registered and used Complainant’s protected mark in a disputed domain name that is confusingly similar to Complainant’s protected mark and did so 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 Complainant to 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.
Given 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 will draw such inferences as the Panel 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.”).
Identical or Confusingly Similar:
Complainant shows rights in the AIRBNB mark by registration of the mark with the USPTO, which is sufficient to establish rights in a mark under the Policy. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant provides a copy of its registration of the AIRBNB mark with the USPTO to support this claim (e.g. Reg. No. 3,890,025, registered Dec. 14, 2010). See Compl. Annex I. The Panel therefore finds that Complainant’s registration of the AIRBNB mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant urges that Respondent’s <airbnbchina.com> domain name is confusingly similar to the AIRBNB mark, as the name is entirely comprised of the mark, a geographically descriptive term, and a generic top-level domain (“gTLD”). The addition of a geographic term and a gTLD to a mark in the creation of a domain name does not differentiate the disputed domain from said mark in a Policy ¶ 4(a)(i) analysis. See General Motors LLC v. Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org, FA 1656166 (Forum Feb. 12, 2016) (finding respondent’s <gm-uzbekistan.com> domain name confusingly similar to complainant’s GM mark as the addition of the geographic term “uzbekistan” is inconsequential to a Policy ¶ 4(a)(i) analysis). Complainant asserts that Respondent’s <airbnbchina.com> domain name is simply a combination of Complainant’s AIRBNB mark, the geographic term “china”, and the “.com” gTLD. The Panel therefore finds that the <airbnbchina.com> domain name is confusingly similar to the AIRBNB mark per Policy ¶ 4(a)(i).
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The Panel finds that Respondent registered a domain name containing Complainant’s mark in its entirety and that domain name is confusingly similar to Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights or Legitimate Interests:
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), then the burden of proof shifts to Respondent to show it does have such rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent has no rights or legitimate interests in the <airbnbchina.com> domain name, because Respondent is not commonly known by the disputed domain name, and Complainant did not authorize Respondent to use the AIRBNB mark. Where a response is not filed, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). The WHOIS information of record identifies Respondent as “Jan Everno/The Management Group II”, and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel therefore finds, under Policy ¶ 4(c)(ii), that Respondent has not been commonly known by the <airbnbchina.com> domain name.
Complainant further argues Respondent’s lack of rights or legitimate interests in the <airbnbchina.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends, instead, that the name resolves to a parked webpage, which is being used to obtain click-through revenue by linking back to Complainant’s own webpage. The use of a disputed domain name to host hyperlinks does not create rights or legitimate interests under Policy ¶¶ 4(c)(i) and (iii). See Fox News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) (finding that the respondent’s use of the disputed domain name to generate revenue via advertisement and affiliate fees is not a bona fide offering of good or services). Complainant provides a screenshot of the disputed domain name’s resolving webpage to support this argument. See Compl. Annex N. The Panel therefore finds that Respondent does not have rights or legitimate interests in the <airbnbchina.com> domain name.
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain name containing Complainant’s protected mark in its entirety; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith:
Complainant contends that Respondent’s bad faith is indicated by Respondent’s general offer to sell the <airbnbchina.com> domain name for an excess of out-of-pocket costs. A respondent’s offer to sell a disputed domain name for valuable consideration in excess of any out-of-pocket costs may be evidence of bad faith per Policy ¶ 4(b)(i). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (finding that the respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out-of-pocket costs). Complainant provides a screenshot of the disputed domain name’s resolving webpage where a general offer to sell the domain, for a minimum of $500, is advertised. See Compl. Annex N. The Panel therefore finds that Respondent registered and used the <airbnbchina.com> domain name in bad faith per Policy ¶ 4(b)(i).
Complainant next argues that Respondent exhibits a pattern of bad faith registration of domain names. A respondent’s history of bad faith registration may be evidence of bad faith registration and use of a disputed domain per Policy ¶ 4(b)(ii). See Bullock v. Network Operations Ctr., FA 1269834 (Forum Aug. 10, 2009) (“Complainant contends that Respondent has a longstanding history of cybersquatting . . . . The Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(ii).”) Complainant provides a record of past UDRP cases brought against Respondent to support this argument. See Compl. Annex P. The Panel therefore finds that Respondent registered and used the <airbnbchina.com> domain name in bad faith pursuant to Policy ¶ 4(b)(ii).
Complainant also contends that Respondent’s bad faith is indicated by its use of the <airbnbchina.com> domain name to host hyperlinks in an attempt to gain commercially by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Use of a domain name to resolve to a page of hyperlinks can demonstrate a respondent’s bad faith under Policy ¶ 4(b)(iv). See Vivint, Inc. v. Online Management, FA1403001549084 (Forum Apr. 23, 2014) (holding that the respondent had registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv) where the disputed domain name resolved to a parking page that featured no content besides sponsored advertisements and links). Complainant provides a screenshot of the disputed domain name’s resolving webpage to support this assertion. See Compl. Annex N. The Panel therefore finds that Respondent registered and used the disputed domain name in bad faith under a Policy ¶ 4(b)(iv) analysis.
Complainant contends as well that, given the fame of Complainant’s mark and Respondent’s use of the disputed domain name, Respondent registered the <airbnbchina.com> domain name with actual notice of Complainant’s rights in the AIRBNB mark. Registration of a disputed domain name with actual notice of a complainant’s rights in a mark supports finding of bad faith pursuant to Policy ¶ 4(a)(iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (“Complainant contends Respondent’s appropriation of Complainant’s trademark was a clear intent to trade upon Complainant’s reputation and goodwill in order to confuse Internet users. Therefore, the Panel finds Respondent had actual knowledge of Complainant’s mark prior to registration and this constitutes bad faith per Policy ¶ 4(a)(iii).”). Complainant provides several media articles describing its services to support the assertion of its fame. See Compl. Annexes F, G, & H. The Panel therefore finds that Respondent registered the <airbnbchina.com> domain name with actual knowledge of Complainant’s rights in the AIRBNB mark – and did so in bad faith, pursuant to Policy ¶ 4(a)(iii).
Respondent makes no contentions relative to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and used a disputed domain name containing Complainant’s protected mark in its entirety and that Respondent did so in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <airbnbchina.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: August 16, 2018
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