WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION eDreams, Inc. v. Private Whois Case No. D2009-1507 1. The Parties
The Complainant is eDreams, Inc.of County of New Castle, Detroit, United States of America, represented by UBILIBET, Spain.
The Respondent is Private Whois of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The Disputed Domain Name is registered with Bargin Register, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 6, 2009. On November 10, 2009, the Center transmitted by email to Bargin Register Inc. a request for registrar verification in connection with the disputed domain name. On November 16, 2009, November 18, 2009 and November 23, 2009, the Center transmitted by email several reminders to Bargin Register Inc. for registrar verification. Bargin Register Inc. did not reply to any of those emails. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 1, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was December 21, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 4, 2010.
The Center appointed Alistair Payne as the sole panelist in this matter on January 7, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is EDREAMS, INC. a European based internet travel company that has been operating since 1999 and either itself or through its' affiliate owns numerous trade mark registrations for EDREAMS. The Complainant also owns numerous domain name registrations incorporating the EDREAMS mark or variants of it including EDREAMS.COM and operates its business through websites under these domain names. The Complainant's business is substantial and it has provided evidence that it is one of the largest online travel agencies in Southern Europe and has had a very substantial presence in the market since well before the date of registration of the Disputed Domain Name.
The Respondent is Private Whois a registrar and privacy service operating out of the Cayman Islands. 5. Parties' Contentions A. Complainant
The Complainant submits that it owns various trademark registrations incorporating the EDREAMS mark or variants, including in particular, its Slovakian mark for EDREAMS dating from March 2000 and a Community Trademark registration for EDREAMS dating from July 2006. The Complainant has provided evidence of a very substantial business with a turnover of many hundreds of millions of Euro generated under its EDREAMS mark and through its various websites under domain names incorporating this mark since commencement in 1999. Accordingly the Complainant says that the Respondent must have been aware of its business when it registered the Disputed Domain Name which only differs by one letter from the Complainant's EDREAMS trademark. The Complainant says that the Disputed Domain Name is therefore confusingly similar to its trademark.
The Complainant further says that the Respondent has no rights or legitimate interests in the Disputed Domain Name. It is not listed as owning any registered trade mark rights in a mark identical to the Disputed Domain Name nor has the Complainant licensed rights to the Respondent or authorised use in any way. The Respondent was not known prior to registration of the Disputed Domain Name by any identical or confusingly similar name or mark and nor is it so known now. The Respondent merely uses the Disputed Domain Name to resolve to a standard domain name parking site and there is no other evidence of use or intention to use in relation to a website or business since registration nearly four years ago. This inaction is further evidence that the Respondent has no legitimate rights or interests in the Disputed Domain Name.
Based on the Complainant's substantial business and the repute attaching to its trade mark, the Respondent must have known of the Complainant's EDREAMS business when it registered the Disputed Domain Name. This is only reinforced by the fact that the Disputed Domain Name only differs from the Complainant's fanciful trade mark by one letter. The Complainant says that this amounts to a purposeful misspelling and appropriation of its fanciful mark for use in the Disputed Domain Name. Typosquatting is a commonly and widely recognized form of Internet cyberquatting and is itself evidence of bad faith as found by previous panels, for example in Easy Group IP Licensing Limited v. John SansoneWIPO Case No. D2004-0763. The Respondent has engaged in a history of typosquatting, for example: see SYTradingPost, Inc. v. OS Domain Holdings IV, LLC, WIPO Case No. D2008-0815 and BHP Billiton Innovation Pty Ltd. v. OS Domain Holdings IV LLC, WIPO Case No. D2008-0488).
Further the Respondent's inactivity in relation to the Disputed Domain Name is evidence of the Respondent's registration and use in bad faith consistent with past decisions in cases such asWIPO Case No. DTV 2001-0026, Don Cornelius Productions, Inc. v. Fred Fluker d/b/a Futurevision and Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; AT&T Corp. v. Randy Thompson, WIPO Case No. D2001-0830). B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel accepts that the Complainant owns registered trade marks for its EDREAMS mark in various jurisdictions and has in addition provided evidence of a very substantial business under its mark commencing from around 1999/2000. The Disputed Domain Name only differs from the Complainant's mark by the addition of another letter “d” and is therefore confusingly similar to the Complainant's registered trademark.
The Complainant therefore succeeds in relation to the first element of the Policy. B. Rights or Legitimate Interests
The Complainant says that it has not licensed or authorised the use of its EDREAMS mark by the Respondent and the Respondent is not known by and does not own any trade mark rights in relation to the Disputed Domain Name and neither does the Disputed Domain Name resolve to an active website. The website to which it does resolve is a passive parking site and the Respondent has not demonstrated during almost four years since registration that it operates or plans to operate any business from the Disputed Domain Name. Even if this is a case in which the Respondent acting as a privacy service operates to mask the real identity of the Respondent, this does not excuse in any way the Respondent from its obligations as the registered owner of the Disputed Domain Name under the Policy.
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The Panel accepts that this case appears to be one of the classic “typosquatting” category in which the Respondent has sought by registering the Disputed Domain Name to take advantage somehow of the repute and goodwill attaching to the Complainant's trademark and very successful on-line travel agency business in Europe. The Respondent has not answered the Complaint and has not provided any argument to the contrary. There is nothing to suggest that the Respondent might not have known of the Complainant's trade mark or business as at the time that the Respondent registered the Disputed Domain Name the Complainant's on-line business was already very substantial and any basic Internet search would have revealed its presence and the Panel infers that this was indeed the case. In the circumstances (an obvious example of typosquatting, no apparent legitimate use and not a generic or common word or phrase) the Respondent's use of the Disputed Domain name to resolve to a passive parking page is inadequate to demonstrate any legitimate rights or interests in the Disputed Domain Name Compart AG v. CVertical Axis, Inc. WIPO Case No. D2009-0462.
The Complaint therefore succeeds in relation to the second element of the Policy. C. Registered and Used in Bad Faith
As noted above, the Panel is of the view that by the date of registration of the Disputed Domain Name the Complainant had developed a very substantial on-line business under its EDREAMS mark and that it is more than likely that the Respondent was aware of the Complainant's existence when it sought to register the Disputed Domain Name. That in these circumstances the Disputed Domain Name differs by only one letter from the Complainant's mark is persuasive. There is nothing to contradict the inference that the Respondent's registration and use of the Disputed Domain Name for a parking site for sponsored links to competing travel sites was made purposefully to somehow cause confusion with the Complainant's mark and domain name, or otherwise to trade off the Complainant's goodwill. Typosquatting of this kind has been held by previous panels in and of itself to amount to bad faith ( see EasyGroup IP Licensing v John Sansone, WIPO Case No. D2004-0763). The Panel notes the Complainant's allegation that the Respondent has been involved in numerous similar cases amounting to a pattern of such conduct.
If the Respondent had a bona fide intent to use the Disputed Domain Name it had plenty of time during the ensuing four years since registration to do so but chose to do nothing. Passive holding in these circumstances may also be indicative of use in bad faith (see for example Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Caase No. D2000-0003). In the circumstances of such an obvious case of typosquatting and without any reasonable explanation for inactivity in development of the website at the Disputed Domain Name, the Panel finds that the Respondent registered and used the Disputed Domain Name in bad faith.
Accordingly the Complaint succeeds in relation to the third element of the Policy. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Alistair Payne
Sole Panelist
Dated: January 20, 2010
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