Online Vacation Center, Inc. v. Domain Active Pty. Ltd. c/o Domain Hostmaster
Claim Number: FA0607000751635
Complainant is Online Vacation Center, Inc. (“Complainant”), represented by Sarah T. Weitz, of Tripp Scott, P.A., 110 S.E. 6th Street, 15th Floor, Fort Lauderdale, FL 33301. Respondent is Domain Active Pty. Ltd. c/o Domain Hostmaster (“Respondent”), PO Box 262, Clayfield QLD 4011, AU.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <onlinevactioncenter.com>, registered with Fabulous.com Pty Ltd.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 14, 2006; the National Arbitration Forum received a hard copy of the Complaint on July 17, 2006.
On July 18, 2006, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <onlinevactioncenter.com> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. 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 August 1, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 21, 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@onlinevactioncenter.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 23, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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 <onlinevactioncenter.com> domain name is identical to Complainant’s ONLINE VACATION CENTER mark.
2. Respondent does not have any rights or legitimate interests in the <onlinevactioncenter.com> domain name.
3. Respondent registered and used the <onlinevactioncenter.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Online Vacation Center, Inc., has continuously used the ONLINE VACATION CENTER mark in connection with vacation packages since 1986. Complainant operates an online travel service at the <onlinevacationcenter.com> domain name.
Complainant’s predecessor, Travel Trails, Inc., registered the ONLINE VACATION CENTER mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,692,277 issued March 4, 2003; Reg. No. 2,715,064 issued May 13, 2003). After applying for valid trademark registrations but before the USPTO issued the registrations, Travel Trails, Inc. changed its corporate name to Online Vacation Center, Inc. on April 16, 2002. The Panel imputes Travel Trails, Inc.’s use of the mark to Complainant for purposes of this decision.
Respondent registered the <onlinevactioncenter.com> domain name on July 6, 2004. Respondent is maintaining a website at the disputed domain name where it offers competing travel packages and services.
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 ONLINE VACATION
CENTER mark with the USPTO, the Panel concludes that Complainant has
established rights in the mark under Policy ¶ 4(a)(i). See ESPN, Inc. v. MySportCenter.com,
FA 95326 (Nat. Arb. Forum Sept. 5, 2000) (concluding that the complainant
demonstrated its rights in the SPORTSCENTER mark through its valid trademark
registrations with the USPTO and similar offices around the world); see also
Morgan Stanley v. Fitz-James (CT2341-RSC) Cititrust Grp. Ltd., FA 571918
(Nat. Arb. Forum Nov. 29, 2005) (“The Panel finds from a preponderance of the
evidence that Complainant has registered its mark with national trademark
authorities. The Panel has determined
that such registrations present a prima
facie case of Complainant’s rights in the mark for purposes of Policy ¶
4(a)(i).”).
Respondent’s <onlinevactioncenter.com> domain
name is a mere misspelling of Complainant’s ONLINE VACATION CENTER, as the
domain name contains the entire registered mark except for one letter. In Compaq Info. Techs. Group, L.P. v.
Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002), the respondent
registered the <compq.com> domain name, and the panel found it to be
confusingly similar to the complainant’s COMPAQ mark because a small change
that resulted in a misspelling of the mark did not diminish the confusing
similarity between the mark and the domain name. Likewise, Respondent’s mere omission of one letter from
Complainant’s mark renders the <onlinevactioncenter.com> domain
name confusingly similar to the mark under Policy ¶ 4(a)(i). See CEC Entm’t, Inc. v. Peppler, FA
104208 (Nat. Arb. Forum Mar. 21, 2002) (finding that the
<chuckcheese.com> domain name was confusingly similar to the
complainant’s CHUCK E. CHEESE mark because the domain name only differed from
the mark by one letter).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <onlinevactioncenter.com> domain name. Complainant must first make a prima facie case in support of its allegations, and then the burden shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Hanna-Barbera Productions, Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <onlinevactioncenter.com>
domain name. See Branco do Brasil
S.A. v. Sync Tech., D2000-0727 (WIPO Sept. 1, 2000) (“By its default,
Respondent has not contested the allegation . . . that the Respondent lacks any
rights or legitimate interests in the domain name. The Panel thus assumes that there was no other reason for the
Respondent having registered <bancodobrasil.com> but the presumably known
existence of the Complainant´s mark BANCO DO BRASIL”); see also Am. Online, Inc. v. AOL Int'l,
D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests
where the respondent fails to respond).
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 domain name under the name “Domain Active Pty. Ltd.,” and there is
no other evidence in the record suggesting that Respondent is commonly known by
the <onlinevactioncenter.com> domain name. Thus, Respondent has not established rights
or legitimate interests in the <onlinevactioncenter.com> domain
name pursuant to Policy ¶ 4(c)(ii). See G.D. Searle & Co. v. Cimock,
FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there
must be strong evidence that Respondent is commonly known by the disputed
domain name in order to find that Respondent has rights or legitimate interests
in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and
Respondent has not come forward with any proof to establish that it is commonly
known as CELEBREXRX or <celebrexrx.com>.”); see
also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335
(Nat. Arb. 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).
In addition, Respondent’s <onlinevactioncenter.com> domain name resolves to a travel services website that competes with Complainant. 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 Carey Int’l, Inc. v. Kogan, FA 486191 (Nat. Arb. Forum Jul. 29, 2005) (holding that the respondent’s use of disputed domain names to market competing limousine services was not a bona fide offering of goods or services under Policy ¶ 4(c)(i), as the respondent was appropriating the complainant’s CAREY mark in order to profit from the mark).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent is using the <onlinevactioncenter.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 ONLINE VACATION CENTER mark, which
constitutes bad faith according to Policy ¶ 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock
Industries, Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding
that the respondent registered and used the <classicmetalroofing.com>
domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet
users to the respondent’s competing website); see also 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).”).
The Panel also finds
that Respondent’s diversionary use of the <onlinevactioncenter.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
ONLINE VACATION CENTER mark in order to profit from the goodwill associated
with the mark. See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum
May 25, 2006) (find that the respondent’s use of the <arizonashuttle.net>
domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract
Internet traffic to Respondent’s website offering competing travel services
violated Policy ¶ 4(b)(iv)); see also Allianz of Am. Corp. v. Bond, FA
680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use
under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users
searching for the complainant to its own website and likely profiting from
click-through fees).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(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 <onlinevactioncenter.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: September 6, 2006
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