Omega World Travel Inc. v. Miles Johnson
Claim Number: FA0605000707131
Complainant is Omega World Travel Inc. (“Complainant”), represented by John J. Lawless, of Omega World Travel Inc., 3102 Omega Office Park, Fairfax, VA 22031. Respondent is Miles Johnson (“Respondent”), 150 Fiddlers Bridge, Fairburn, GA 30213.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <omegaworldtravelonline.com>, registered with Wild West 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 16, 2006; the National Arbitration Forum received a hard copy of the Complaint on May 19, 2006.
On May 16, 2006, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <omegaworldtravelonline.com> domain name is registered with Wild West Domains, Inc. and that Respondent is the current registrant of the name. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On May 22, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 12, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@omegaworldtravelonline.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 15, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <omegaworldtravelonline.com> domain name is confusingly similar to Complainant’s OMEGA WORLD TRAVEL mark.
2. Respondent does not have any rights or legitimate interests in the <omegaworldtravelonline.com> domain name.
3. Respondent registered and used the <omegaworldtravelonline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has been continuously using the OMEGA WORLD TRAVEL mark in connection with a travel agency for over thirty-four years. Complainant maintains more than 200 offices around the world and employs more than 1,000 people. Complainant is the third largest travel agency in the United States according to Business Travel News, a travel industry trade publication, and Diversitybusiness.com recently named Complainant the number-one woman-owned business in the United States. Complainant’s founder, president and CEO, Gloria Bohan, is a highly-recognized and renowned figure in the travel services industry.
Complainant has registered the OMEGA WORLD TRAVEL mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,503,320 issued September 6, 1988; Reg. No. 1,503,320 issued September 6, 1988). Complainant also holds domain name registrations for the following domain names: <omegaworldtravel.com> (registered on July 30, 1998), <omegatravel.com> (registered on March 22, 1995), <omegatravel.org> (registered on September 5, 2001), <owt.net> (registered on October 22, 2004) and <omegatravelonline.com> (registered on June 17, 1999).
Respondent registered the <omegaworldtravelonline.com> domain name on January 24, 2006. Respondent’s domain name resolves to the website of a company called YTB International, Inc, a direct competitor of Complainant in the travel services industry. Complainant claims that some of its clients have mistaken Respondent’s website for Complainant’s website. Complainant alleges that one of its clients called to cancel a reservation and that Complainant could not find the transaction in their records because the client had accidentally made a reservation at Respondent’s website at the <omegaworldtravelonline.com> domain name.
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."
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(e), 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 (Nat. Arb. 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.”).
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.
Because Complainant has registered the OMEGA WORLD TRAVEL mark with the USPTO, Complainant has demonstrated its rights in the mark pursuant to Policy ¶ 4(a)(i). See Miller Brewing Co. v. The Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO).
Additionally, the <omegaworldtravelonline.com>
domain name is confusingly similar to Complainant’s OMEGA WORLD TRAVEL mark,
because the domain name contains the entire registered mark and simply adds the
term “online.” In Arthur Guinness
Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23,
2001), the panel found that the respondent’s domain names, all of which
contained the complainant’s entire GUINNESS mark but merely added common terms
to the end, such as “irish stout,” “guide,” “tours” and “jazz festival,” were
confusingly similar to the mark because each featured the complainant’s
GUINNESS mark “prominently.” Therefore,
Respondent’s addition of a common term to Complainant’s OMEGA WORLD TRAVEL mark
in the <omegaworldtravelonline.com> mark does not sufficiently
distinguish the domain name from the mark but instead renders the domain name
confusingly similar to the mark pursuant to Policy ¶ 4(a)(i). See Broadcom Corp. v. Domain Depot,
FA 96854 (Nat. Arb. Forum Apr. 23, 2001) (finding the
<broadcomonline.com> domain name is confusingly similar to the
complainant’s BROADCOM mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain name. Complainant has the initial burden of proof in establishing that Respondent lacks rights or legitimate interests in the domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights to or legitimate interests in the disputed
domain name. See Geocities v. Geocities.com, D2000-0326
(WIPO June 19, 2000) (finding that the respondent has no rights or legitimate
interests in the domain name because the respondent never submitted a response
or provided the panel with evidence to suggest otherwise); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”). However, the Panel will now examine the
record to determine if Respondent has rights or legitimate interests under
Policy ¶ 4(c).
Respondent has registered the <omegaworldtravelonline.com> domain name as “Miles Johnson,” and there is no other evidence in the record suggesting that Respondent is commonly known by the disputed domain name. Consequently, Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that the respondent was not commonly known by <aolcamera.com> or <aolcameras.com> because the respondent was doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”).
Moreover, Respondent is using the <omegaworldtravelonline.com>
domain name to redirect Internet users seeking Complainant’s travel services to
the website of one of Complainant’s competitors, YTB International, Inc. The Panel finds that Respondent’s diversionary
use of the disputed domain name to misdirect consumers to a competitor of
Complainant for commercial gain is not a bona fide offering of goods or
services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use
pursuant to Policy ¶ 4(c)(iii). See
Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005)
(finding that the respondent’s use of the <expediate.com> domain name to
redirect Internet users to a website featuring links to travel services that
competed with the complainant was not a bona fide offering of goods or
services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use
pursuant to Policy ¶ 4(c)(iii)); see also DLJ Long
Term Inv. Corp. v. BargainDomainNames.com,
FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed
domain name in connection with a bona fide offering of goods and services
because Respondent is using the domain name to divert Internet users to
<visual.com>, where services that compete with Complainant are
advertised.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Because Respondent is using the <omegaworldtravelonline.com>
domain name to redirect Internet users to a competing travel services website,
the Panel finds that Respondent has registered and is using the disputed domain
name in order to disrupt Complainant’s business under the OMEGA WORLD TRAVEL
mark, which constitutes bad faith according to Policy ¶ 4(b)(iii). See Marriott Int’l, Inc. v. MCM Tours,
Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel
agency and thus operates in the same business as the Complainant. The parties
can therefore be considered as competitors. The Panel thus finds that the
Respondent registered the domain name primarily for the purpose of disrupting
the business of a competitor, which constitutes evidence of registration and
use in bad faith under Policy 4(b)(iii).”); see also Disney Enters., Inc. v. Noel, FA
198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name
confusingly similar to Complainant's mark to divert Internet users to a
competitor's website. It is a reasonable inference that Respondent's purpose of
registration and use was to either disrupt or create confusion for
Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and]
(iv).”).
The Panel also finds
that Respondent’s diversionary use of the <omegaworldtravelonline.com>
domain name for commercial gain violates Policy ¶ 4(b)(iv), for by linking the domain
name to a competitor’s travel website, Respondent is taking advantage of the
confusing similarity between the disputed domain name and Complainant’s OMEGA
WORLD TRAVEL mark in order to profit from the goodwill associated with the
mark. See Toyota Motor Sales U.S.A. Inc. v. Clelland, FA 198018 (Nat. Arb. Forum Nov. 10, 2003) (“Respondent
used <land-cruiser.com> to advertise its business, which sold goods in
competition with Complainant. This establishes bad faith as defined in Policy ¶
4(b)(iv).”); see also G.D. Searle & Co. v. Celebrex
Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the
respondent registered and used the domain name in bad faith pursuant to Policy
¶ 4(b)(iv) because the respondent was using the confusingly similar domain name
to attract Internet users to its commercial website).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <omegaworldtravelonline.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 28, 2006
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