The Complainant is Travelers Haven, LLC of Denver, Colorado, United States of America (“United States” or “U.S.”), represented by Kelly/Warner, PLLC of Tempe, Arizona, United States.
The Respondent is Jocelyn Hall of Provo, Utah, United States, represented pro se. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Domaininternetname, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 18, 2013. On January 21, 2013, the Center transmitted a request for registrar verification in connection with the Domain Name by email to the Registrar. On January 23, 2013, the Registrar transmitted its verification response confirming that the Respondent was listed as the registrant and providing the contact details for the Domain Name by email to the Center.
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 January 30, 2013. While the Center received failed delivery notices in response to the email notification it sent to the Respondent’s email address at […]@, the Center’s email notification was also sent to the Respondent at […]@, and appeared to have been successfully delivered to this second email address of the Respondent. The Center also notified the Respondent of the Complaint by courier posted on January 30, 2013. In accordance with the Rules, paragraph 5(a), the due date for a Response by the Respondent was February 19, 2013. The Respondent did not submit a timely response to the Complaint. Accordingly, the Center notified the parties of the Respondent’s default on February 21, 2013.
On March 2, 2013, the Respondent filed an unsolicited late submission and the Center replied on March 4, 2013 that it would be within the discretion of the Panel to determine whether to accept any submission after the response deadline.
The Center appointed Marylee Jenkins as the sole panelist in this matter on March 12, 2013. 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. Having reviewed the entire record submitted for this proceeding, the Panel finds that it was properly constituted. 4. Factual Background
The Complainant bases its Complaint on its common law rights in the trade name and mark TRAVELERS HAVEN used in connection with nationwide temporary housing accommodation services since at least August 16, 2007 and has a pending U.S. trademark application (Serial No. 85/686,630) for the mark TRAVELERS HAVEN filed on July 25, 2012 in international class 43 for such services. The Complainant is also the owner of the domain name registered on November 28, 2006 and has a website accessible thereto that has provided information on its company and services since at least August 2007.
The Domain Name was registered on June 25, 2012 to the Respondent and is set to expire on June 25, 2013. The website at the Domain Name is currently a hold page with a list of “sponsored listings” links to third party websites for a variety of goods and services directed to accommodations and travel as well as a link to buy the Domain Name from the owner. 5. Parties’ Contentions A. Complainant
The Complainant asserts that it has used the mark TRAVELERS HAVEN since at least August 16, 2007 in connection with its nationwide temporary housing accommodation services, which it describes as: arranging nationwide temporary housing accommodations, namely, residential homes and other housing solutions for healthcare and other corporate executives and employees, government personnel, travelers and persons displaced due to accident or natural disaster; providing nationwide temporary housing accommodations, namely, residential homes and other housing for healthcare and other corporate executives and employees, government personnel, travelers and persons displaced due to accident or natural disaster; arranging and providing temporary housing accommodations during a corporate relocation; and, providing information in the field of temporary housing accommodations for healthcare and other corporate executives and employees, government personnel, travelers and persons displaced due to accident or natural disaster. The Complainant is the applicant of a pending U.S. trademark application (Serial No. 85/686,630) filed on July 25, 2012 for the mark TRAVELERS HAVEN for use with the services, as noted above. The Complainant is also the owner of the domain name since November 28, 2006, and has been operating a website at this domain name since at least August 2007.
As evidence that it has established common law rights in the mark TRAVELERS HAVEN, the Complainant annexed printouts to the Complaint from an Internet archive showing use by the Complainant, since at least August 2007, of the mark TRAVELERS HAVEN on its website at “www.my”. The Complainant contends that the mark TRAVELERS HAVEN has taken on secondary meaning and validates the Complainant’s common law rights in the mark. In support of this contention, the Complainant annexed to the Complaint a printout of search engine results for “Travelers Haven” showing that every listed result on the first page referenced the Complainant as well as printouts of references to the Complainant using the mark TRAVELERS HAVEN made in U.S. national publications dating back to 2010 and 2011. The Complainant also submitted evidence of its activities on a social media site using the mark TRAVELERS HAVEN. Based on this evidence, the Complainant contends that the Domain Name is identical to its mark and that confusing similarity is presumed.
The Complainant contends that the Respondent has no established rights or legitimate interest in the Domain Name. In support of this contention, the Complainant states that it has never licensed or authorized Respondent to use the mark TRAVELERS HAVEN and that there is no relationship between the Respondent and the Complainant and that the Respondent does not maintain a business or work in a field with any connection to the Complainant. The Complainant further supported this contention by attaching a printout of what is believed to be the Respondent’s LinkedIn profile.
The Complainant also alleged that the Respondent is neither using the Domain Name in connection with a bona fide offering of goods or service nor making a legitimate noncommercial or fair use of the Domain Name. In support of this allegation, the Complainant annexed to the Complaint a screen-shot of the Respondent’s website showing that it is currently a hold page containing sponsored listings ranging from auto insurance, travel insurance to housing accommodations.
The Complainant contends that the Respondent acquired and is using the Domain Name in bad faith. In support of this contention, the Complainant explained that when the registration of the Domain Name by a third party expired in June 2012, the Complainant attempted to register the Domain Name by backordering it but the Respondent had already acquired the Domain Name. The Domain Name was registered by the Respondent on June 25, 2012. On June 27, 2012, the Complainant received an unsolicited email from an individual by the name of “Dan Baron” offering to sell the Domain Name to the Complainant for USD 3,500. A copy of this email was annexed to the Complaint. The Complainant alleges that Dan Baron is an agent for the Respondent. In support of this allegation, the Complainant referenced earlier WIPO UDRP decisions to show that Dan Baron has acted as an agent for different domain name registrants who were found to have acted in bad faith. In further support of its contention that the Respondent acted in bad faith in acquiring and using the Domain Name, the Complainant contends that the Respondent is continuing to attempt to sell the Domain Name for an excessive sum by extending the date of the auction for the sale of the Domain Name on Go Daddy Auctions to March 22, 2013 even though a bid had already been made for the Domain Name. Further, the Complainant notes that the Respondent has a history of acquiring and using domain names in bad faith and cites to a WIPO UDRP decision. The Complainant accordingly contends that the Respondent has registered and is using the Domain Name in bad faith. B. Respondent
The Respondent did not timely file a reply with respect to this proceeding. 6. Discussion and Findings
Paragraph 4(a) of the Policy states that the domain name holder is to submit to a mandatory administrative proceeding in the event that a third party (complainant) asserts to an ICANN-approved dispute resolution service provider that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the domain name holder has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Under paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent’s default as it considers appropriate. Nevertheless, the Panel can only rule in the Complainant’s favor only after the Complainant has proven that the above-listed elements are present. A. Unsolicited Late Submission
With respect to the unsolicited late submission of the Respondent, the Panel finds that the Center has fully discharged its responsibility under the Rules, paragraph 2(a), “to employ reasonably available means calculated to achieve actual notice to Respondent” of this proceeding and that the Respondent is in default for failing to file a response to the Complaint within the deadline required by this proceeding. The Panel will not accept or consider the late submission of the Respondent in reaching its decision and submits that the Parties will not be prejudiced by this decision. B. Identical or Confusingly Similar
Under paragraph 4(a)(i) of the Policy, the Complainant is required to establish that the Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights. The Rules do not require that the Complainant’s trademark or service mark be registered with a governmental authority or agency in order for the Complainant to have established rights in its trademark. Indeed, it is well established that a complainant need not have a registered trademark to have established rights in a trademark for the purposes of the Rules. SeekAmerica Networks Inc. v. Tariq Masood and Solo Signs,WIPO Case No. D2000-0131.
Although the Complainant in this proceeding cites to its pending U.S. trademark application for the mark TRAVELERS HAVEN claiming use since at least August 16, 2007, such application was filed after the registration date (i.e., June 25, 2012) of the Domain Name. However, the Complainant also bases its Complaint on common law trademark rights in its trade name and mark TRAVELERS HAVEN and its use thereof in conjunction with nationwide temporary housing accommodation services in the United States since at least August 16, 2007. To establish such common law rights, the Complainant must show that its mark has achieved secondary meaning or association with it. In determining whether the Complainant's mark has acquired secondary meaning, one must consider a variety of factors, including, but not limited to, advertising, promotion, sales, media coverage and the length, manner and exclusivity of use of the mark by the Complainant.
The Complainant has shown use of its trade name and mark TRAVELERS HAVEN in connection with its nationwide temporary housing accommodation services for many years and well prior to the registration date of the Domain Name. Such evidence shows the Complainant’s promotion, marketing and advertising thereof in connection with its services includes pages from its website at “www.my”, news articles and searches regarding the Complainant and the use of its mark on company profile, search engine and social media websites. Accordingly, based on the findings and uncontested evidence presented and that the Respondent has not disputed or challenged the Complainant's rights therein, the Panel is satisfied for the purposes of this proceeding that the Complainant has shown it possesses common law trademark rights.
A review of the second-level domain “travelershaven” of the Domain Name shows that it includes the Complainant’s trade name and mark TRAVELERS HAVEN in its entirety. Based on these findings and the submitted evidence, the Panel concludes that paragraph 4(a)(i) has been satisfied based upon the Domain Name being identical to the Complainant's name and mark TRAVELERS HAVEN. C. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out circumstances, in particular but without limitation, which, if found by the Panel to be proven based on her evaluation of all of the evidence presented, can demonstrate the holder’s rights to or legitimate interests in the Domain Name. These circumstances include:
(i) before any notice to the holder of the dispute, the holder’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the holder (as an individual, business, or other organization) has been commonly known by the domain name, even if the holder has acquired no trademark or service mark rights; or
(iii) the domain name holder is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
No evidence has been presented that the Respondent is or has been commonly known by the Domain Name or before any notice to the Respondent of this dispute; the Respondent had been using or was making demonstrable preparations to use the Domain Name in connection with any type of bona fide offering of goods or services. The Panel has further confirmed that the website at the Domain Name resolves to a hold page with accommodation and travel based sponsored links as well as a “buy this domain” link. The hold page accordingly does not support a finding that the Respondent was making a legitimate noncommercial or fair use of the Domain Name. The evidence submitted by the Complainant further shows that the Respondent’s registration of the Domain Name does not predate the Complainant's much earlier first use and first use in commerce of its mark TRAVELERS HAVEN. Nor has any evidence been presented that the Complainant has at any time assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use its name and mark in any fashion. The Panel therefore concludes that the Respondent has no rights or legitimate interests in the Domain Name and that paragraph 4(a)(ii) of the Policy has been satisfied. D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that evidence of registration and use in bad faith by the holder includes, but is not limited to:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the holder’s website or location.
Based upon the uncontested evidence submitted by the Complainant, the Panel finds that the Respondent had knowledge of the Complainant’s name and mark TRAVELERS HAVEN when registering the Domain Name. This finding is supported by the evidence showing that the Domain Name was registered well after the Complainant began use of its name and mark. Further although the Complainant’s mark is not registered, the Complainant has long used its mark on its website prior to the Respondent’s registration of the Domain Name. Additionally, as supported by evidence submitted by the Complainant, a search engine search for the Complainant’s name and mark readily reveals the Complainant’s website and the Complainant’s use of its name and mark TRAVELERS HAVEN. Coupled with the above findings that the Domain Name is identical to the Complainant's mark and that the Respondent has established no rights or legitimate interests in the Domain Name, the Panel finds that the Respondent registered the Domain Name in bad faith.
The Complainant has also submitted undisputed evidence that the Respondent offered to sell the Domain Name to the Complainant for an amount in excess of the Respondent’s out-of-pocket costs directly related to the Domain Name shortly after the Respondent’s registration of the Domain Name. Particularly, the Complainant has provided evidence that it received an email from an individual by the name of Dan Baron offering to sell the Domain Name for USD 3,500. The Complainant noted that Dan Baron has been found in prior WIPO UDRP proceedings acting as an agent for domain name registrants attempting to sell domain names for unreasonable sums (e.g., Future Publishing Limited v. AK Karato, John Wong,WIPO Case No. D2009-1349; Conforama Holding v. Ying Liu,WIPO Case No. D2010-0094; Pitman Training Group Plc. v. Pitmant Raining Co. Ltd, Host Master,WIPO Case No. D2010-0678). The additional evidence of the “buy this domain” link on the website accessible at the Domain Name, the Respondent’s ongoing auctioning of the Domain Name on the Go Daddy’s Auction site and the Respondent’s history of registering and using a domain name in bad faith (e.g., Ubisoft Entertainment, S.A. v. N/A, Jocelyn Hall, WIPO Case No. D2012-1416) further supports a finding that the Respondent acted in bad faith in registering and using this Domain Name.
Finally, no evidence has been presented by the Respondent of any type of actual or contemplated legitimate non-commercial, good faith or fair use of the Domain Name since it was registered last year. Accordingly, when considering such findings and the uncontested evidence in their entirety, the Panel thus concludes that the Respondent registered and is using the Domain Name in bad faith and that paragraph 4(a)(iii) has been satisfied. 7. Decision
For the foregoing reasons in accordance with paragraph 4(i) of the Policy and paragraph 15 of the Rules, the Panel orders that the Domain Name be transferred to the Complainant.
Marylee Jenkins
Sole Panelist
Date: March 26, 2013
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