TRIPADVISOR LLC v. Hulmiho Ukolen / Poste restante
Claim Number: FA1902001828562
Complainant is TRIPADVISOR LLC ("Complainant"), represented by CitizenHawk, Inc., California, USA. Respondent is Hulmiho Ukolen / Poste restante ("Respondent"), Finland.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <tripadvasor.com>, <tripadvicor.com>, and <tripadvsisor.com>, registered with Gransy, s.r.o..
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 5, 2019; the Forum received payment on February 5, 2019.
On February 7, 2019, Gransy, s.r.o. confirmed by email to the Forum that the <tripadvasor.com>, <tripadvicor.com>, and <tripadvsisor.com> domain names are registered with Gransy, s.r.o. and that Respondent is the current registrant of the names. Gransy, s.r.o. has verified that Respondent is bound by the Gransy, s.r.o. 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 February 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 7, 2019 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@tripadvasor.com, postmaster@tripadvicor.com, postmaster@tripadvsisor.com. Also on February 15, 2019, 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 March 10, 2019, 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 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant was founded in 2000 and states that it is the world's largest travel site, operating sites in more than 45 countries and in 28 languages, and reaching more than 490 million unique monthly visitors. Complainant has used the TRIPADVISOR mark in connection with this business since 2000, and owns various U.S. trademark registrations for the mark.
Respondent registered the disputed domain names <tripadvasor.com>, <tripadvicor.com>, and <tripadvsisor.com> between September 2015 and January 2016, holding the registrations in the name of a privacy registration service. (The privacy shield was removed by the registrar upon the filing of the Complaint in this proceeding, revealing the Respondent's address as poste restante (general delivery) at the Helsinki main post office, with what appears to be an invalid postal code and an invalid telephone number.)
Complainant characterizes the domain names as instances of "typosquatting," noting that they vary from Complainant's mark and domain name by only a single character. Complainant states that Respondent is not commonly known by the disputed domain names, is not sponsored by or legitimately affiliated with Complainant, and has not been given permission to use Complainant's mark. The domain names all redirect visitors to Complainant's own website via affiliate links, in violation of the terms of Complainant's affiliate program agreement. In addition, Complainant states further that all three of the disputed domain names have been publicly offered for sale (at prices of $19,999, $50,000, and $13,486, respectively).
Complainant contends on the above grounds that the disputed domain names <tripadvasor.com>, <tripadvicor.com>, and <tripadvsisor.com> are confusingly similar to its TRIP ADVISOR mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are 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 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 Management, 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.").
Each of the disputed domain names <tripadvasor.com>, <tripadvicor.com>, and <tripadvsisor.com> corresponds to a typographical variation of Complainant's registered TRIP ADVISOR trademark, omitting the space and substituting or inserting a single letter, and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., TripAdvisor, LLC v. Above.com Domain Privacy / Above.com, FA 1623514 (Forum July 22, 2015) (finding <tripadviaor.com>, <tripadvidsor.com>, and several other domain names confusingly similar to TRIP ADVISOR). Accordingly, the Panel considers each of the disputed domain names to be confusingly similar to Complainant's registered mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain names incorporate Complainant's registered mark without authorization, and they are being used to redirect Internet users to Complainant's website via affiliate links. Using a domain name that is confusingly similar to a trademark to redirect Internet users to the trademark owner's website to profit from an affiliate program in violation of its terms does not give rise to rights or legitimate interests under the Policy. See, e.g., TripAdvisor, LLC v. Above.com Domain Privacy / Above.com, supra; Ticket Software, LLC v. Websites & Domains / Public Registrations, FA 1603102 (Forum Mar. 6, 2015); The Gap, Inc. v. Hulmiho Ukolen, FA 1507424 (Forum Aug. 23, 2013).
Complainant asserts that Respondent was a member of Complainant's affiliate program and thus was a party to that agreement, but offers only a generic copy of an agreement between Commission Junction, Inc. and "You" as support for this assertion. See TripAdvisor, LLC / Smarter Travel Media LLC v. Domain Admin / Privacy Ltd. Disclosed Agent for YOLAPT, FA 1623462 (Forum Sept. 24, 2015) (finding for respondent on issue of rights or legitimate interests based upon complainant's failure to provide evidence of affiliate agreement between parties). Complainant's plausible but unsubstantiated assertion has not been not disputed by Respondent, and may therefore be accepted as true for purposes of this proceeding. Furthermore, the existence of an affiliate agreement between the parties is not critical to Complainant's position. Using a domain name that is confusingly similar to a trademark to redirect Internet users to the trademark owner's own website without authorization does not give rise to rights or legitimate interests under the Policy even in the absence of an affiliate program agreement prohibiting such conduct. See, e.g., Emerson Electric Co. v. Mariusz Kowalczyk, FA 1770167 (Forum Feb. 28, 2018) (finding lack of rights or interests where sole apparent use of domain name was to redirect users to complainant's own website).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, 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 names.
Finally, Complainant must show that the disputed domain names were registered and are being 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)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." 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."
Respondent registered three domain names that represent typographical variations on Complainant's mark and domain name, using a privacy registration service and false registration data to conceal Respondent's actual identity and location. Respondent registered the domain names with the obvious intent of creating and profiting from confusion with Complainant, and has subsequently used the domain names for that purpose, in apparent violation of the terms of Complainant's affiliate program. In addition, Respondent has publicly offered the domain names for sale at prices far exceeding their registration costs. Respondent's conduct demonstrates bad faith registration and use under the provisions cited above. The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tripadvasor.com>, <tripadvicor.com>, and <tripadvsisor.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 11, 2019
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