The Complainant is OneTwoTrip Ltd. of Road Town, Tortola, British Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland, represented by Alimirzoev & Trofimov Law Firm, Russian Federation.
The Respondent is Karpau Anatoli of Minsk, Belarus. 2. The Domain Name and Registrar
The disputed domain name is registered with Tucows Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 23, 2013. On April 23, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 23, 2013, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on May 8, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was May 28, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 29, 2013.
The Center appointed Assen Alexiev as the sole panelist in this matter on June 6, 2013. 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 provides online services related to the search, booking and sale of airline tickets. It is the owner of the combined trademark ONE TWO TRIP! with registration No. s461,383, registered for the territory of the Russian Federation on May 11, 2012, with priority as of February 18, 2011, for services in International Classes 39 and 43 (the “ONE TWO TRIP! trademark”).
The disputed domain name was registered on July 17, 2012. 5. Parties’ Contentions A. Complainant
According to the Complainant, on or around September 29, 2012, it discovered that the disputed domain name was registered and used by Mr. S. V. Trubnikov for a website that offered services related to search, booking and sale of airline tickets - the same services that are offered by the Complainant. The website also contained a representation of the Complainant’s ONE TWO TRIP! trademark. The Complainant contacted Mr. Trubnikov, and invited him to voluntarily stop the operation of his website and to transfer the disputed domain name to the Complainant. In response Mr. Trubnikov offered to sell the disputed domain name for USD 1,500, and soon afterwards the disputed domain name was transferred to the Respondent Mr. Karpau Anatoli. The representation of the Complainant’s ONE TWO TRIP! trademark was removed from the website associated to the disputed domain name, but it continued to offer the same services as before.
The Complainant submits that the disputed domain name is identical to the ONE TWO TRIP! trademark.
The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name. After Mr. Trubnikov transferred the disputed domain name to the Respondent, the website “www.” continued to operate and to offer services for the sale and booking of travel tickets and hotels, thus violating the Complainant’s trademark rights in the ONE TWO TRIP! trademark. The Complainant also maintains that the Respondent has not been commonly known by the disputed domain name.
Finally, the Complainant submits that the disputed domain name was registered and is being used in bad faith. It was registered after the registration of the Complainant’s ONE TWO TRIP! trademark, and is being used for offering and selling services that compete with the Complainant’s and with the intent to achieve commercial gain by misleading the consumers. In addition, Mr. Trubnikov has offered to sell the disputed domain name to the Complainant for USD 1,500. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the Respondent has registered and is using the disputed domain name in bad faith.
In this case, the Panel finds the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present his case.
Pursuant to the Rules, paragraph 5(b)(i), it is expected of the Respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”
In the event of a default, under the Rules, paragraph (14)(b): “…the Panel shall draw such inferences therefrom as it considers appropriate.”
As stated by the panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques,WIPO Case No. D2000-0004 “here, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent.” As stated by the panel in Viacom International Inc. v. Ir Suryani,WIPO Case No. D2001-1443 “since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant […]. In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.”
In this administrative proceeding, the Respondent’s default entitles the Panel to conclude that the Respondent has no arguments or evidence to rebut the assertions of the Complainant. The Panel has to take its decision on the basis of the statements and documents submitted by the Complainant and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar
The Complainant has provided evidence for the registration and its ownership over the ONE TWO TRIP! trademark, registered in the Russian Federation. Thus, the Complainant has established its rights in this trademark.
It is a common practice under the Policy to disregard the generic top-level domains (“gTLD”) such as “.net” for the purposes of the comparison under the Policy, paragraph 4(a)(i). Therefore, the relevant part of the disputed domain name is its “onetwotrip” section. This element represents a combination of the words “ONE”, “TWO” and “TRIP” of the Complainant’s ONE TWO TRIP! trademark. These three words are the most prominent elements of the trademark due to their size and central position, and because the graphical element of the trademark – the representation of a suitcase - is likely to be associated with travelling and thus with the services for which the ONE TWO TRIP! trademark is registered, and which represents the actual business of the Complainant.
Therefore, the Panel finds that the similarity between the disputed domain name and ONE TWO TRIP! trademark creates a likelihood of confusion in Internet users between the two. Taking this into account, the Panel finds that the disputed domain name is confusingly similar to the ONE TWO TRIP! trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Policy requires the Complainant to make at least a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name. Once the Complainant makes such a showing, the Respondent may provide evidence to demonstrate that it has rights or legitimate interests in the disputed domain name. The burden of proof, however, always remains on the Complainant to establish that the Respondent lacks rights or legitimate interests in the disputed domain name. See paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
The Complainant has contended that the Respondent has no rights or legitimate interests in the disputed domain name, stating that the Respondent has not been commonly known by the disputed domain name, that Mr. Trubnikov has transferred the domain name to the Respondent after receiving a cease and desist letter from the Complainant, and that the website “www.” infringes the Complainant’s trademark rights in the ONE TWO TRIP! trademark by offering services that are included in the scope of protection of the trademark. Thus, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent, although given a fair opportunity to do so, chose not to present to the Panel any arguments in his defense in accordance with the Rules, paragraph 5(b)(i) and 5(b)(ix), despite the consequences that the Panel may extract from the fact of a default (Rules, paragraph 14). If the Respondent had any legitimate reason for the acquisition and use of the disputed domain name, it could have brought it to the attention of the Panel. In particular, the Respondent has failed to contend that any of the circumstances described in Policy, paragraph 4(c), is present in his favor.
Apart from the factual contentions of the Complainant, the only other sources of information about the Respondent are the WhoIs information, provided by the Registrar, and the content of the website at the disputed domain name. The WhoIs information contains no evidence that the Respondent is commonly known by the disputed domain name. The disputed domain name is confusingly similar to the ONE TWO TRIP! trademark of the Complainant, and the website linked to it offers services which compete to those of the Complainant and for which the ONE TWO TRIP! trademark is registered. Taking all these circumstances into account, the Panel considers it quite likely that Mr. Trubnikov was well aware of the Complainant and of its trademark, and registered the disputed domain name mainly taking into account their goodwill and value for the Complainant. The Panel finds no reasons to regard the conduct of the Respondent differently, as he acquired the disputed domain name from Mr. Trubnikov soon after the latter received the cease and desist letter from the Complainant, has continued to use it to offer the same services in competition with the Complainant, and has not disputed any of the contentions of the Complainant in this proceeding.
The Panel therefore finds that the circumstances discussed above cannot be regarded as establishing rights or legitimate interests of the Respondent in the disputed domain name, and that the Complainant’s prima facie case has not been rebutted. Therefore, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by a panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(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 holder’s website or location or of a product or service on the holder’s website or location.
As discussed above, the circumstances of this case are such that the Panel finds no reasons to distinguish the conduct of the Respondent from the conduct of Mr. Trubnikov, although the Panel finds that the Complainant’s case against the Respondent itself has been fully made out. It may even well be that after its transfer to the Respondent the disputed domain name continues to be controlled by Mr. Trubnikov.
The Panel finds both Mr. Trubnikov and the Respondent are likely to have been aware of the Complainant’s ONE TWO TRIP! trademark at the time of the registration, and, the later acquisition of the disputed domain name, which is confusingly similar to the same trademark. Neither of them appears to have any rights or legitimate interests in the disputed domain name, and the website “www.” offers services that compete with the Complainant’s services, and for a period of time contained a representation of the Complainant’s ONE TWO TRIP! trademark. These circumstances show to the satisfaction of the Panel that the Respondent, by registering and using the disputed domain name, has intentionally attempted to attract for commercial gain Internet users to the website “www.” by creating a likelihood of confusion with the Complainant’s ONE TWO TRIP! trademark as to the source, sponsorship, affiliation, or endorsement of the same website or of the services offered on it. This supports a finding of bad faith registration and use of the disputed domain name of this element of the Policy in the Panel’s assessment.
In addition, Mr. Trubnikov has offered to sell the disputed domain name to the Complainant for the sum of USD 1,500, which is likely well above his direct out-of-pocket expenses for the registration of the disputed domain name. This offer for sale of the disputed domain name, which has not been denied in this proceeding, is an additional circumstance in support of the finding of bad faith registration and use of the disputed domain name under the Policy, paragraph 4(b)(i).
Therefore, and in the lack of any allegation or evidence to the contrary, the Panel finds that the Respondent has registered and used the disputed domain name in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Assen Alexiev
Sole Panelist
Date: June 26, 2013
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