Airbnb, Inc. v. Super Privacy Service LTD c/o Dynadot
Claim Number: FA1812001821386
Complainant is Airbnb, Inc. (“Complainant”), represented by David K. Caplan of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Super Privacy Service LTD c/o Dynadot (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <airbnbb.com>, registered with Dynadot, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 17, 2018; the Forum received payment on December 17, 2018.
On December 17, 2018, Dynadot, LLC confirmed by e-mail to the Forum that the <airbnbb.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 December 18, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 7, 2019 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@airbnbb.com. Also on December 18, 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 January 9, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <airbnbb.com> domain name is confusingly similar to Complainant’s AIRBNB mark.
2. Respondent does not have any rights or legitimate interests in the <airbnbb.com> domain name.
3. Respondent registered and uses the <airbnbb.com> domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Airbnb, Inc., uses the AIRBNB mark in connection with travel and hospitality services. Complainant holds a registration for the AIRBNB mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,890,025, registered Dec. 14, 2010).
Respondent registered the <airbnbb.com> domain name on February 14, 2011, and uses it to offer the domain name for sale and to redirect Internet users to a website that directly competes with Complainant’s business.
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 Panel 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). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1625332 (Forum July 17, 2015) (finding, “Registration of a mark with a governmental authority (or, in this case, multiple governmental authorities) is sufficient to establish rights in the mark for purposes of Policy ¶ 4(a)(i)”).
Respondent’s <airbnbb.com> domain name contains the AIRBNB mark and simply adds the letter “b” and the “.com” gTLD. Misspelling a complainant’s mark and adding a gTLD to the mark does not distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’). The Panel therefore finds that Respondent’s <airbnbb.com> domain name is confusingly similar to Complainant’s AIRBNB mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have 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 <airbnbb.com> domain name and is not commonly known by the domain name. Complainant has not licensed or authorized Respondent to use the AIRBNB mark. The WHOIS information of record identifies the owner of the disputed domain name as “Super Privacy Service LTD c/o Dynadot.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <airbnbb.com> domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant further argues that Respondent’s lack of rights and legitimate interests in the <airbnbb.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods and services or for a legitimate or noncommercial or fair use. Complainant contends that Respondent solicits offers to purchase the disputed domain name, which is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Twentieth Century Fox Film Corporation v. Diego Ossa, FA1501001602016 (Forum Feb. 26, 2015) (“The Resolving parked page advertises the sale of the domain name with the message ‘Would you like to buy this domain?’ The Panel accepts this offer as demonstrative of Respondent’s willingness to sell the disputed domain name, and finds that such behavior provides additional evidence that Respondent lacks rights or legitimate interests in the disputed domain name.”). Complainant provides screenshots of the webpage at <airbnbb.com> with a “Click here” link that redirects visitors to an offer page on Respondent’s website. The Panel finds that this use is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Complainant also provides screenshots showing that the disputed domain name redirects Internet users to the webpage of Complainant’s main competitor. The Panel finds that Respondent’s use of the <airbnbb.com> domain name to offer competing services is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations action gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <airbnbb.com> domain name in bad faith by offering it for sale. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i). See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The <directvgo.com> domain name redirects users to a third party website, it first states, via a link, that the <directvgo.com> domain name may be for sale. If the link is clicked, users are redirected to a page that states, “The owner of Directvgo.com has chosen to receive offer inquiries regarding this domain name.” Therefore, the Panel holds that Respondent registered and uses the domain name in bad faith per Policy ¶ 4(b)(i).”).
Complainant contends that Respondent is disrupting Complainant’s business by diverting Internet users to links to third party competing websites. Using a disputed domain name to mislead users and redirect them to third party, competing websites indicates bad faith per Policy ¶¶ 4(b)(iii) and (iv). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”); see also American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant Policy ¶¶ 4(b)(iii) and (iv).
Complainant argues that, due to the fame of the AIRBNB mark and Respondent’s inclusion of Complainant’s AIRBNB mark in the disputed domain name, Respondent must have had actual knowledge of Complainant’s rights in the AIRBNB mark prior to registration. The Panel agrees and finds further bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.).
The Panel finds that Complainant has satisfied 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 <airbnbb.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 10, 2019
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