AGIP, LLC Limited Liability Company Delaware v. ICS INC.
Claim Number: FA1606001681897
Complainant is AGIP, LLC Limited Liability Company Delaware (“Complainant”), represented by CitizenHawk, Inc., California. Respondent is ICS INC. (“Respondent”), Cayman Islands.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <agode.com> and <aqoda.com>, registered with Tucows Domains Inc.
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 June 29, 2016; the Forum received payment on June 29, 2016.
On June 30, 2016, Tucows Domains Inc. confirmed by e-mail to the Forum that the <agode.com> and <aqoda.com> domain names are registered with Tucows Domains Inc. and that Respondent is the current registrant of the names. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 July 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 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@agode.com, postmaster@aqoda.com. Also on July 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 August 3, 2016, 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 one of Asia's leading and fastest growing online hotel reservation services. It lists hundreds of thousands of hotels and provides services in 38 different languages. Its main focus is securing and providing the lowest available hotel prices in every destination worldwide. Given that its reach in the Asia-Pacific region is unmatched with instant availability at more than 24,000 hotels, it has become an industry leader. It has serviced millions of travelers and shares the hundreds of thousands of corresponding reviews and experiences on its website. It has over 1,300 employees operating across the globe with operations in Singapore, Bangkok, Kuala Lumpur, Tokyo, Sydney, Hong Kong, and Budapest, with an additional presence in major cities across Asia, Africa, the Middle East, Europe, and the Americas. Complainant registered the AGODA trademark in the USA on January 31, 2006 and uses it to market its services.
According to Complainant, the disputed domain names are confusingly similar to the AGODA trademark: the <agode.com> domain name substitutes the letter “e” for “a,” and the <aqoda.com> domain name substitutes the letter “q” for “g.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known as the domain name, nor is Respondent a licensee of Complainant. Furthermore, Complainant is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain names resolve to webpages that display competing hyperlinks. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has engaged in bad faith registration and use. Respondent has displayed bad faith under Policy ¶ 4(b)(i) by attempting to sell the domain name. Respondent has displayed bad faith under Policy ¶ 4(b)(iii) by posting competing hyperlinks that disrupt Complainant’s business. Respondent has displayed bad faith under Policy ¶ 4(b)(iv) by attempting to commercially profit from a likelihood of confusion. Respondent's typosquatting behavior is, in and of itself, evidence of bad faith. Respondent is a recalcitrant, serial cybersquatter / typosquatter: searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of such behavior. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark AGODA dating back to 2006.
The domain name <agode.com> was registered on February 22, 2007, and <aqoda.com> was registered on April 6, 2010.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that provides links to services that compete with those of 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.”).
Complainant has registered the AGODA trademark in the USA on January 31, 2006). The mark is used in connection with travel agency services.
The <agode.com> and <aqoda.com> domain names are confusingly similar to the AGODA trademark. The <agode.com> domain name substitutes the letter “e” for “a,” and the <aqoda.com> domain name substitutes the letter “q” for “g.” Prior panels have found such changes to be of no distinguishing relief for respondents (see ModCloth, Inc. v. James McAvoy, FA 1629102 (Forum Aug. 16, 2015) (“The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark because it differs from Complainant’s mark by merely adding the letter ‘L’ . . . ”); see also Caterpillar Inc. v. Center for Ban on Drugs, FA 661437 (Forum May 2, 2006) ("the omission of a single letter from Complainant's mark does not adequately distinguish the Disputed Domain Name from the mark")). Thus the Panel finds that the disputed domain names are confusingly similar to the AGODA trademark.
Respondent is not in possession of licensing rights that would allow him to use the AGODA mark in domain names. Respondent is not commonly known as the disputed domain name: the Panel notes that “ICS INC.” is listed as the registrant of record for the disputed domain names. The Panel also notes that the record is devoid of any evidence to indicate that Respondent is either commonly known as the disputed domain name or in possession of licensing rights. Where such a void exists, Respondent cannot have rights or legitimate interests under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent’s use of the disputed domain names fails to consist of a bona fide offering of goods or services or a legitimate noncommercial or fair use. Indeed the disputed domain names are being used to host a website containing competing hyperlinks. Prior panels have declined to award Policy ¶¶ 4(c)(i) and (iii) rights in similar scenarios (see Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien 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.”); see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Forum Sep. 26, 2003) (holding that Respondent's use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com>, domain names to redirect Internet users to a website featuring advertisements and links to Complainant's competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use)).
The Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for his 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.
Respondent has attempted to sell the disputed domain names. Prior panels have found such behavior to amount to bad faith under Policy ¶ 4(b)(i) where the respondent listed an asking price that well-exceeded its out-of-pocket costs in acquiring the domain name. See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (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).”). Thus, the Panel finds bad faith under Policy ¶ 4(b)(i).
Further, Respondent has displayed bad faith under Policy ¶ 4(b)(iii) by disrupting Complainant’s business because the domain names resolve to webpages that display competing hyperlinks. Prior panels evaluating such behavior have found bad faith under Policy ¶ 4(b)(iii). 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).”). Accordingly, Panel finds bad faith under Policy ¶ 4(b)(iii).
Further, Complainant has displayed bad faith under Policy ¶ 4(b)(iv) by attempting to commercially profit from a likelihood of confusion because the domain names resolve to webpages that display competing hyperlinks. Where respondents have done this in the past, panels have found bad faith under Policy ¶ 4(b)(iv). See Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)). Thus, the Panel finds bad faith under 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 <agode.com> and <aqoda.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 5, 2016
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page