WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION eDreams, Inc. v. Algon Domains Case No. D2009-1510 1. The Parties
Complainant is eDreams, Inc. of Wilmington, Delaware, United States of America, represented by Ubilibet, Spain.
Respondent is Algon Domains, Domain (c/o R Privacy Service) of Ottawa, Ontario, Canada. 2. The Domain Name and Registrar
The disputed domain name is registered with R Corp. 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 R Corp. a request for registrar verification in connection with the disputed domain name. On November 11, 2009, R Corp. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on November 16, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was December 6, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on December 7, 2009.
The Center appointed Nasser A. Khasawneh as sole panelist in this matter on December 14, 2009. 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
Complainant owns numerous trademark registrations in many countries.
Among Complainant's earlier registrations for the mark EDREAMS are the following: Registration number 195781 (0790-2000), granted in Class 35 on June 19, 2001 (Slovakia); Registration number 2000-03323, granted in Classes 09, 11, 35, 36, 38, 39, 41 and 42 on November 22, 2000 (Norway); and Registration number 235639 (153616), granted in Class 35 on August 27, 2001 (Czech Republic). Complainant also owns dozens of domain names with a variety of top-level and geographic extensions, based on its trademark and small variations or misspellings.
The disputed domain name was registered April 29, 2004. The disputed domain name presently routes to a parking page displaying a search tool and sponsored advertising links to Complainant's websites and to third-party travel-related online services.1 5. Parties' Contentions A. Complainant
Complainant avers that its company has been doing business since 2000. Since then, Complainant avers, its company has developed a large worldwide presence as an online travel booking agent. In 2008, according to Complainant's allegations and exhibits submitted with the Complaint, Complainant invoiced over 607 million Euros to customers, has the largest market share of any online travel business in Southern Europe, and in 2009, sold ten percent of the air travel tickets sold in the Spanish market.
Complainant contends that this is a case of “typo squatting,” in which Respondent seeks to direct users who misspell Complainant's name to Respondent's own parking page website for Respondent's own commercial purposes. Complaint lists many of its trademark registrations for the term “edreams,” noting that Complainant's earliest three EDREAM trademark registrations were granted before registration of the disputed domain name.
In summary, Complainant alleges that (1) the disputed domain name is confusingly similar to trademarks in which Complainant has rights, (2) Respondent has no rights or legitimate interests in the disputed domain name, and (3) Respondent registered and is using the disputed domain name in bad faith.
To support its allegations of bad faith registration, Complainant alleges that Respondent's deliberate misspelling of Complainant's EDREAMS trademark establishes Respondent's prior awareness, citing EasyGroup IP Licensing Limited v. John Sansone,WIPO Case No. D2004-0763. To support bad faith use, Complainant avers that the website to which the disputed domain name routes is inactive, displaying only a parking page for five years.
Complainant requests transfer. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
The Rules require the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Complainant must establish these elements even if Respondent does not submit a response. See, e.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. In the absence of a Response, the Panel may also accept as true the factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009). A. Identical or Confusingly Similar
Although the disputed domain name is not identical to Complainant's trademarks listed above, the Panel agrees with Complainant that Respondent's domain name is confusingly similar to the EDREAMS trademarks.
Panels disregard the domain name suffix in evaluating confusing similarity. E.g., VAT Holding AG v. VAT.com,WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc.,WIPO Case No. D2006-1315.
Removing the suffix, the disputed domain name is almost identical to Complainant's trademarks. The fact that Respondent's domain name substitutes the order of two letters in Complainant's EDREAMS mark does not change the Panel's conclusion that the domain name is confusingly similar to Complainant's trademarks. Without the gtld designation, the remaining word in the disputed domain name “edremas” and Complainant's trademark EDREAMS are similar in appearance and are phonetically very close.
The Panel believes that, on a balance of probabilities, Complainant's trademark was intentionally misspelled in order to attract the flow of Internet users who have mistyped Complainant's URL address and to increase traffic to its website. Such “typo squatting” has regularly been condemned by UDRP panels. E.g., The Nasdaq Stock Market, Inc. v. NSDAQ.COM, NASDQ.COM and NASAQ.COM, WIPO Case No. D2001-1492, cited in Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556; VeriSign, Inc. v. Onlinemalls,WIPO Case No. D2000-1446.
The Panel finds, therefore, that the disputed domain name is confusingly similar to Complainant's registered EDREAMS trademark.
Complainant also owns European Community trademark Registration number 005223061, issued July 26, 2007 for the mark EDREMAS in classes 36, 38 and 39. It is conceivable that this registered trademark, granted three years after registration of the disputed domain name, could be relevant to the Panel's determination under Policy paragraph 4(a)(i). See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Question 1.4. (consensus view that “[r]egistration of a domain name before a complainant acquires trademark rights in a name does not prevent a finding of identity or confusing similarity”).
There is no evidence in the record respecting Complainant's actual use of the registered EDREMAS trademark, and there is abundant evidence respecting the widespread use of Complainant's several EDREAMS marks. Because the Panel agrees with Complainant that this is essentially a case in which Respondent registered a deliberate misspelling of Complainant's principal EDREAMS marks, the Panel finds it preferable to consider the parties' rights in this proceeding with reference to Complainant's EDREAMS marks and not the more recently registered EDREMAS mark. In this instance, therefore, the Panel's ruling under Policy paragraph 4(a)(i) is based on confusing similarity and not on identity.
In conclusion, the requirements in paragraph 4(a)(i) of the Policy are fulfilled. B. Rights or Legitimate Interests
The Panel also concludes that Respondent has no rights or legitimate interests in the disputed domain name.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in a domain name. The list includes: (1) using the domain name in connection with a bona fide offering of goods and services; (2) being commonly known by the domain name; or (3) making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Policy, paragraphs 4(c)(i) – (iii).
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests in a disputed domain name, after which the burden of rebuttal passes to the respondent. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. Id., (citing De Agostini S.p.A. v. Marco Cialone,WIPO Case No. DTV2002-0005).
As the Complaint exhibits show, Respondent's website displays a parking page, with sponsored links to Complainant's websites and third-party travel agencies. By diverting traffic to third parties and their products, the Panel finds that Respondent is using Complainant's marks for its own commercial purposes. See, e.g., The Bear Stearns Companies Inc. v. Darryl Pope, WIPO Case No. D2007-0593 (“the Panel is free to infer that Respondent is likely receiving some pecuniary benefit . . . in consideration of directing traffic to that site” (citing COMSAT Corporation v. Ronald Isaacs, WIPO Case No. D2004-1082)). See also Fat Face Holdings Ltd v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0626; Sanofi-aventis v. Montanya Ltd.,WIPO Case No. D2006-1079.
In the absence of a Response, the Panel accepts as true Complainant's allegations that Respondent has no authorization to use Complainant's trademarks. The Panel also accepts Complainant's uncontested allegation that Respondent is not known by the disputed domain name.
The Panel agrees with Complainant that Respondent is seeking to attract Internet users through Complainant's marks for Respondent's own commercial purposes. The Panel therefore finds that Respondent's use of the disputed domain name demonstrates Respondent's lack of a legitimate non-commercial interest in, or fair use of, the disputed domain name. See e.g., Pfizer Inc. v. jg a/k/a Josh Green,WIPO Case No. D2004-0784. The Panel also finds that Complainant makes out a prima facie case.
Filing no response, Respondent has not rebutted Complainant's prima facie case or invoked any of the circumstances of paragraph 4(c) of the Policy to support the existence of its “rights or legitimate interests” in use of the disputed domain name.
Accordingly, the Panel concludes that paragraph 4(a)(ii) of the Policy is satisfied. C. Registered and Used in Bad Faith
The Panel finds that the third element of paragraph 4(a) of the Policy, bad faith registration and bad faith use, is also established.
Using a domain name to intentionally attract Internet users, for commercial gain, by creating a likelihood of confusion, may be evidence of bad faith registration and use. Policy, paragraph 4(b)(iv). See, e.g., L´Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc,WIPO Case No. D2005-0623. Panels may draw inferences about bad faith registration or use in light of the circumstances, including the failure to reply to a complaint. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
The Panel infers that Respondent acquired the disputed domain name with awareness of Complainant's business because Complainant's EDREAMS trademark was already registered in various countries when the disputed domain name was registered in 2004, and, based on exhibits to the Complaint, Complainant's business had developed a broad Internet presence using the trademark by 2004. The Panel also agrees with Complainant's suggestion that this is a typical case of typo squatting: Respondent's intention was to register a name to direct users who misspelled “edreams” to Respondent's own website. E.g., EasyGroup IP Licensing Limited v. John Sansone, supra.
The Panel's inference that Respondent had awareness of Complainant's rights is further supported by the content of Respondent's website. Respondent's website includes sponsored advertising links both to Complainant's websites, and to third-party travel agencies and online air ticket sales, the same commercial area in which Complainant uses its trademarks.
The Panel finds therefore that the original domain name registration was made with the intention of trading on the value of Complainant's trademarks. The Panel concludes that Respondent deliberately attempted to attract Internet users to its website for commercial gain, by creating a likelihood of confusion with Complainant's mark. Under the circumstances, this constitutes registration in bad faith for purposes of the Policy.
The Panel also concludes that the circumstances show bad faith use of the disputed domain name by Respondent, as elaborated below.
As noted above, Respondent's website shows that the disputed domain name is used to promote the products of competitors of Complainant. The Panel concludes that this activity evidences bad faith use by Respondent. Pfizer Inc. v. jg a/k/a Josh Green, supra (citing Google, Inc. v. and Jimmy Siavesh Behain,WIPO Case No. D2000-1240; Casio Keisanki Kabushiki Kaisha (Casio Computer Co., Ltd.) v. Jongchan Kim,WIPO Case No. D2003-0400; Downstream Technologies, LLC v. Bartels System GmbH,WIPO Case No. D2003-0088).2 Respondent's failure to submit any reply to the Complaint is further evidence of bad faith.
The Panel therefore concludes that the disputed domain name was registered and is being used by Respondent in bad faith under paragraph 4(b)(iv) 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 Complainant.
Nasser A. Khasawneh
Sole Panelist
Dated: December 25, 2009
Full & Egal Universal Law Academy