AGIP, LLC Limited Liability Company Delaware v. Airai Holdings
Claim Number: FA1607001683996
Complainant is AGIP, LLC Limited Liability Company Delaware (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Airai Holdings (“Respondent”), Palau.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agouda.com>, registered with Tucows Domains Inc.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 15, 2016; the Forum received payment on July 15, 2016.
On July 18, 2016, Tucows Domains Inc. confirmed by e-mail to the Forum that the <agouda.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. 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 18, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 8, 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@agouda.com. Also on July 18, 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 16, 2016 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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
Policy ¶ 4(a)(i)
Complainant has rights in the AGODA mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,054,915, registered on Nov. 8, 2005). Respondent’s <agouda.com> domain name is confusingly similar to the AGODA mark because it contains the mark, plus a single letter, combined with the generic top-level domain (“gTLD”) “.com.”
Policy ¶ 4(a)(ii)
Respondent is not commonly known by the <agouda.com> domain name because the available WHOIS information identifies “Airia Holdings” as Registrant and because Respondent is not permitted to use the AGODA mark. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website contains generic third-party links to competitors of Complainant.
Policy ¶ 4(a)(iii)
Respondent uses the <agouda.com> domain name in bad faith because the domain is offered for sale and because the resolving website contains generic third-party links to competitors of Complainant, which is both disruptive to Complainant’s business and intended to attract Internet users for commercial gain. Respondent registered the <agouda.com> domain name in bad faith because it did so with knowledge of Complainant and because the registration constituted typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, AGIP, LLC Limited Liability Company Delaware, uses the AGODA mark in relation to travel agency services. Complainant has rights in the AGODA mark through registration with the USPTO. Respondent’s <agouda.com> domain name is confusingly similar to the AGODA mark.
Respondent registered the <agouda.com> domain name on February 13, 2008.
Respondent is not commonly known by the <agouda.com> domain name. Complainant has not authorized Respondent to use the AGODA mark. Respondent fails to use the <agouda.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving website contains generic third-party links to competitors of Complainant.
Respondent uses the <agouda.com> domain name in bad faith because the resolving website contains generic third-party links to competitors of Complainant, which is both disruptive to Complainant’s business and intended to attract Internet users for commercial gain. Respondent registered the <agouda.com> domain name in bad faith because it did so with knowledge of Complainant and because the registration constituted typosquatting.
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 rights in the AGODA mark under Policy ¶ 4(a)(i) through registration with the USPTO. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through registration with the United States Patent and Trademark Office.).
Respondent’s <agouda.com> domain name is confusingly similar to the AGODA mark under Policy ¶ 4(a)(i) because it contains the mark, plus a single letter “u”, combined with the “.com” gTLD.
Respondent is not commonly known by the <agouda.com> domain name. The WHOIS information lists “Airia Holdings” as Registrant. Complainant has not authorized Respondent to use the AGODA mark. 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).
Respondent fails to use the <agouda.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), because the resolving website contains generic third-party links to competitors of Complainant, which presumably provide Respondent with pay-per-click revenue. See Persohn v. Lim, FA 874447 (Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process).
Respondent uses the <agouda.com> domain name in bad faith under Policy ¶ 4(b)(iii), because the resolving website contains generic third-party links to competitors of Complainant, which is disruptive to Complainant’s business. 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).”).
Respondent uses the <agouda.com> domain name in bad faith under Policy ¶ 4(b)(iv), because the resolving website contains generic third-party links to competitors of Complainant, which is intended to attract Internet users for commercial gain. See Staples, Inc. and Staples the Opffice Superstors, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”).
Respondent registered the <agouda.com> domain name in bad faith because it did so with actual knowledge of Complainant’s AGODA mark. Therefore, Respondent registered the <agouda.com> domain name in bad faith. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”).
Respondent registered the <agouda.com> domain name in bad faith under Policy ¶ 4(a)(iii) because the registration constituted typosquatting. See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <agouda.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 25, 2016
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