priceline.com LLC v. yin jun
Claim Number: FA1605001673435
Complainant is priceline.com LLC ("Complainant"), represented by Jamie E. Platkin of Cantor Colborn LLP, Connecticut, United States. Respondent is yin jun ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <priceline.ws> ('the Domain Name'), registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 Panellist in this proceeding.
Dawn Osborne of Palmer Biggs Legal as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 5, 2016; the Forum received payment on May 5, 2016.
On May 6, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <priceline.ws> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 May 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 26, 2016 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@priceline.ws. Also on May 6, 2016, 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 June 1, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal as Panellist.
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's submissions can be summarised as follows:
Complainant owns numerous federal service marks and trademark registrations in the USA and across the world for PRICELINE for travel and related services including China where the Respondent is based. It offers its services via www.priceline.com launched in 1998 and has been the recipient of numerous honors and awards. Complainant's website receives on average 20 million unique visitors each month. The PRICELINE MARK is famous.
The Domain Name fully incorporates Complainant's famous PRICELINE marks and merely adds the descriptive generic top-level domain '.ws.' As such it is identical and/or confusingly similar to the Complainant's PRICELINE marks.
Respondent has no rights in PRICELINE, is not commonly known by it and has not been authorised by the Complainant in any way.
The Domain Name directs to different commercial travel websites including the Complainant's website and its competitors. Respondent intentionally uses the PRICELINE marks in the Domain Name to attract Internet users to commercial travel websites of Respondent's choosing by creating a likelihood of confusion with the Complainant's marks as to the source, affiliation or endorsement of such websites. This is not legitimate non commercial or fair use or bona fide use of the Domain Name.
The use of the Domain Name is disruptive of the Complainant's business and shows the Respondent knew of the existence of Complainant's PRICELINE mark and its significance to the travel industry.
Complainant sent a cease and desist to Respondent also referring to the domain name priceline. Respondent replied and offered to sell the Domain Name to Complainant and provided links where the domain was on sale on Sedo for $600. The Who is record for the Domain Name also indicates that it is for sale for $600.
The Domain Name was registered and has been used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns numerous federal service marks and trade mark registrations in the USA and across the world for PRICELINE for travel and related services including China where the Respondent is based. It offers its services via www.priceline.com launched in 1998.
Respondent is using the Domain Name for pay-per-click links to sites not associated with the Complainant and has offered the Domain Name for sale to the Complainant and generally on the Internet.
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 respondentrketing, inc.e Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representatiosee 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.O F
The Domain Name consists of a name identical to the Complainant's registered mark plus the ccTLD designation for Western Samoa. Neither the Complainant nor the Respondent appear to have any connection with the country Western Samoa, although the .ws domain is often used to indicate an abbreviation for 'web site' in a commercial context and appears to perform that function here. The addition of the .ws ccTLD does not serve to distinguish the Domain Name from the Complainant's PRICELINE mark and the Panellist finds that this domain name is identical to a mark in which the Complainant has rights for the purpose of the Policy. See Cloudflare, Inc. v. [Registrant] FA 1624251 (Forum August 1, 2015) (holding the inclusion of a cc TLD does not alleviate the similarity between a mark and a disputed domain name).
Respondent is not commonly known by the Domain Name and has not been authorised to use the Complainant's trademark. The site currently attached to the Domain Name is being used for links related to travel services in competition with those of the Complainant. It is clear from the content of the site that the Respondent is aware of the significance of the name "PRICELINE" in the travel industry. The Panelist finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc. v. Benjamin FA 944242 (Nat. Arb. Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to advertise real estate services which competed with the Complainant's business did not constitute a bona fide use of goods and services.). As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Complainant alleges that the true motive of the Respondent was to sell the Domain Name to the Complainant. It appears from the evidence that the Respondent has requested $600 for the Domain Name. Panels have held that attempts to sell a disputed domain name constitute bad faith. See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1506001625332 (Forum July 17, 2015) ('A respondent's general offer to sell a disputed domain name for an excess of out of pocket costs is evidence of bad faith under Policy 4(b)(i)'). The Panelist has held that the current use of the Domain Name shows knowledge of the Complainant's PRICELINE mark and agrees that the Domain Name has been registered primarily for sale for a price in excess of out-of-pocket expenses and has been registered and used in bad faith.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy and there is no need to consider further the Complainant's other submissions re further evidence of bad faith.
Decision
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <priceline.ws> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: 13 June, 2016
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