Expedia, Inc. v. hari krish
Claim Number: FA2301002028104
Complainant is Expedia, Inc. (“Complainant”), represented by David M. Kelly of Kelly IP, LLP, District of Columbia, USA. Respondent is hari krish (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ex-pedia.co>, registered with NameCheap, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on January 18, 2023; Forum received payment on January 18, 2023.
On January 19, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <ex-pedia.co> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 January 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 9, 2023 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@ex-pedia.co. Also on January 20, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On February 15, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 it is one of the world’s largest travel companies. Complainant owns an extensive portfolio or group of travel brands that feature the world’s broadest supply portfolio, encompassing more than 200 travel booking sites in more than 70 countries covering 2,900,000+ properties, 500+ airlines, and 210,000+ activities. Over the years, Complainant’s commercial success has been tremendous: it sells billions of dollars’ worth of products and services each year. For example, its revenues were revenues were approximately $8,598,000,000 in 2021, $5,199,000,000 in 2020, and $12,067,000,000 in 2019. Complainant has rights in the EXPEDIA mark through its registration of the mark in the United States in 1999.
Complainant alleges that the disputed domain name is identical or confusingly similar to its EXPEDIA mark as it merely adds a hyphen to the mark, in addition to the “.co” country code top-level-domain name (ccTLD).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use the EXPEDIA mark. Respondent has not used the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name furtherance of a fraudulent email phishing scheme. The disputed domain name does not resolve to an active website.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by using the disputed domain name for fraudulent activities. Respondent’s website intentionally uses the disputed domain name for commercial gain by creating confusion with Complainant’s mark. Respondent had actual knowledge of Complainant’s rights to the EXPEDIA mark prior to registering the disputed domain name as evidenced by Respondent’s use of the mark in addition to Respondent’s fraudulent activities.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark EXPEDIA dating back to 1999 and uses it to market travel services.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to impersonate Complainant in furtherance of a fraudulent email phishing scheme.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name merely adds a hyphen to Complainant’s EXPEDIA mark, in addition to the “.co” country code top-level-domain name (ccTLD). The addition of punctuation and a ccTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Morgan Stanley v. nashan, FA 1706094 (Forum Jan. 23, 2017) (finding the <morgan-stanley.xyz> domain name identical to complainant’s MORGAN STANLEY mark, because “the use of a hyphen and addition of a gTLD are irrelevant in determining the identical or confusingly similar nature of a disputed domain name under Policy ¶ 4(a)(i).”); see also Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (“The disputed domain name <rockwellautomation.co> corresponds to Complainant's registered ROCKWELL AUTOMATION mark, with the space omitted and the ".co" top-level domain appended thereto. These alterations do not distinguish the domain name from Complainant's mark for purposes of the Policy.”). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its EXPEDIA mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Here, the WHOIS information for the disputed domain name lists the registrant as “hari krish”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant presents evidence showing that Respondent uses the disputed domain name to impersonate Complainant in furtherance of a fraudulent email phishing scheme. Using a disputed domain name to pass off as complainant for the purpose of defrauding users may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Furthermore, the disputed domain name does not resolve to an active website. Failure to actively use the disputed domain name may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). See CrossFirst Bankshares, Inc. v. Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”). Thus, on this ground also, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its 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.
Indeed, as already noted, Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme. Bad faith use and registration may be found when a respondent uses an email address to pass itself off as the complainant under Policy ¶ 4(b)(iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); see also Capital One Financial Corporation and Capital One Bank v. Austin Howel, FA 289304 (Forum Aug. 11, 2004) (finding bad faith where respondent used complainant’s mark to fraudulently induce transfer of credit and personal identification information). The Panel therefore finds bad faith registration and use per Policy ¶ 4(b)(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 <ex-pedia.co> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 15, 2023
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