The Complainant is Momondo A/S of Copenhagen, Denmark, represented by Otello Law Firm, Denmark.
The Respondent is Private Person, Leonid Puskin of Moscow, Russian Federation / PrivacyP of Queensland, Australia. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 28, 2013. On August 28, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 29, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 29, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint and also notifying that the Complaint was administratively deficient. The Complainant filed an amended Complaint on August 30, 2013.
The Center verified that the Complaint together with the amended 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 September 2, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was September 22, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 23, 2013.
The Center appointed Ladislav Jakl as the sole panelist in this matter on September 30, 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.
On the question of the language of the proceedings, the Registrar confirmed on August 29, 2013 that the English language was used to inform the registrant of both the disputed domain name Registration Agreement as well as the Customer Agreement during the domain name registration and customer signup process.
Therefore, in accordance with paragraph 11 of the Rules, the language of the administrative proceedingsis English. 4. Factual Background
The Complainant was established in 1997 and is the owner of various trademark registrations for MOMONDO in various countries in the world for different kinds of goods and services in classes as 16, 30, 33, 35, 39, 41, 42 and 45 of the International Classification. The overview of all these registrations for the trademark reproductions is comprised in Annex 2, 3 and 4 of the Complaint. For example, the Community trademark No. 005944855 MOMONDO filed on May 16, 2007 and registered on April 8, 2008; International trademark registration No. 1053763 MOMONDO registered on September 24, 2010, designating over 25 countries, including the Russian Federation (Annex 5 of the Complaint), among others.
According to the information provided by the Registrar, the disputed domain name was registered on January 26, 2013.
The Complainant requests the Panel, appointed in this administrative proceeding, that the disputed domain name be transferred to the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to its trademark MOMONDO, that the Respondent has no rights or legitimate interests in respect to the disputed domain name and that the disputed domain name was registered and is being used in bad faith.
The Complainant introduces that the disputed domain name is confusingly similar to the Complainant’s trademarks because of the visual and aural similarities. The Complainant contends that the disputed domain name consists of the letters “M-O-M-O-N-D-O-S” and that the Complainant‘s trademark and domain name consist of the letters “M-O-M-O-N-D-O”. The disputed domain name has almost the same length and the same letters. The only letter that differs is the last letter “S” in the disputed domain name, hence the Complainant’s trademark and the disputed domain name visually appear confusingly similar. Further, the disputed domain name only indicates the Complainant’s name in plural, hence the disputed domain name is also aural confusingly similar to Complainant’s trademark.
As to rights or legitimate interests in respect of the disputed domain name, the Complainant essentially contends that the Respondent is not known by the disputed domain name, has not been authorized by the Complainant to use the MOMONDO trademarks or any similar trademark and has never made any bona fide use of the disputed domain name. The Respondent registered the disputed domain name on January 26, 2013, long after the Complainant had registered its domain name and its trademarks.
Furthermore, the Complainant asserts that the disputed domain name is deliberately being used for commercial gain to attract Internet users to the Respondent’s website based on a likelihood of confusion with the Complainant’s MOMONDO domain name and trademarks. The disputed domain name incorporates a misspelling of the Complainant’s trademark (“Typosquatting” or “URL hijacking”). The disputed domain name apparently generates revenue for the Respondent when confused consumers “click through” to websites offering the goods and services of the Complainant. Moreover, the Complainant states that the disputed domain name is using the same figurative mark/logo as the Complainant, which constitutes a very serious infringement. The Complainant’s trademark MOMONDO is a well-known trademark globally and the Respondent is obviously taking unfair advantages on the Complainant’s goodwill and reputation. The Respondent is obviously seeking to profit from and exploit the Complainant’s trademark by diverting Internet users to the Respondent’s “pay-per-click” parking website. In view of this, the Complainant asserts that the Respondent cannot claim to be making a legitimate noncommercial or fair use of the disputed domain name. Because the Complainant’s trademark MOMONDO is so well known in the travel industry, the Respondent has attempted to attract, for commercial gain, Internet users by confusion as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of products or services thereon. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(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 disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all three elements are present lies with the Complainant. A. Identical or Confusingly Similar
The Panel accepts the arguments of the Complainant that the disputed domain name is confusingly similar to the Complainant’s trademark MOMONDO because of the visual and aural similarities. The disputed domain name consists of the combination of letters “m-o-m-o-n-d-o-s” and the Complainant’s trademark consists of the combination of letters “m-o-m-o-n-d-o”. Both have almost the same length and the same letters. The only letter that differs is the last letter “s” in the disputed domain name, hence the disputed domain name and the trademark visually appear confusingly similar. Further, when the word “momondos” only indicates the Complainant’s name in plural, hence the disputed domain name is also aural confusingly similar. The Panel finds that the test of identical or confusing similarity under the Policy is generally confined to a comparison of the domain name and the trademark alone (Wal-Mart Stores, Inc. v. Traffic Yoon, WIPO Case No. D2006-0812). The mere addition of one letter to the Complainant’s trademark does not adequately distinguish the disputed domain name from the Complainant’s trademark pursuant to the Policy, paragraph 4(a)(i). See Wal -Mart Stores, Inc. v. Gerry Senker,WIPO Case No. D2006-0211; HSBC Holdings Plc v. David H. Gold,WIPO Case No. D2001-0343; F. Hoffmann-La Roche AG v. Whois Defender, Inc.,WIPO Case No. D2006-0717; Sanofi-Aventis v. PLUTO DOMAIN SERVICES PRIVATE LIMITED, WIPO Case No. D2008-1483; Sanofi-Aventis v. N/A, WIPO Case No. D2009-0705; America Online, Inc. v. Anson Chan,WIPO Case No. D2001-0004. As well, the inclusion of the generic Top-Level Domain (“gTLD”) “.com” does not avoid confusing similarity between the disputed domain name and the Complainant’s trademark MOMONDO. See AT&T Corp. v. William Gormally, WIPO Case No. D2005-0758; Accor v. Lee Dong Youn, WIPO Case No. D2008-0705; and Sanofi-aventis v. Brad Hedlund,WIPO Case No. D2007-1310.
For all the above cited reasons, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademark, and therefore the condition of paragraph 4(a)(i) of the Policy is fulfilled. B. Rights or Legitimate Interests
As to rights or legitimate interests in respect of the disputed domain name, the Respondent is not known by the disputed domain name, has not been authorized by the Complainant to use its MOMONDO trademark or any similar trademark and has never made any bona fide use of the disputed domain name. The Panel finds the Respondent must have been aware of the Complainant’s trademarks MOMONDO, noting the International trademark registration No. 1053763, enjoying registration as of September 24, 2010 and designating the Russian Federation. The disputed domain name was registered on January 26, 2013. There is no doubt for this Panel that the Respondent has chosen the disputed domain name to exploit the goodwill of the Complainant’s trademark (McDonal’s Corporation v. ZusCom,WIPO Case No. D2007-1353). The Respondent has no relation to the Complainant and only registered the disputed domain name for commercial gain in order to misleadingly divert Internet users to websites affiliated with the Complainant. It is obvious that the Respondent primarily registered the disputed domain name in order to participate at the affiliate program and gain commissions. Moreover, the Complainant has not authorized the Respondent to use the disputed domain name. The Respondent is not a licensee of the Complainant and did not obtain any authorization to use the trademark of the Complainant. There is a consensus view by previous UDRP panels that such use cannot be considered a bona fide offering of goods or services, or a noncommercial or fair use in circumstances as the ones that are present in this case (Bridgestone Corporation v. Horoshiy, Inc., WIPO Case No. D2004-0795; Deutsche Telekom AG v. Dong Wang,WIPO Case No. D2005-0819; Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 and World Wrestling Federation Entertainment, Inc. v. Michael Bosman,WIPO Case No. D1999-0001).
For the above cited reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, and that the requirements of paragraph 4(a)(ii) of the Policy are therefore fulfilled. C. Registered and Used in Bad Faith
Under paragraph 4(a)(iii) of the Policy, the Complainant must prove that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) sets out certain circumstances which, in particular but without limitation, are to be construed as evidence of both. These include, inter alia, paragraphs 4(b)(ii), (iii) and (iv):
(ii) the Respondent has registered the disputed 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 Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of its website or of a product or service on that website or location.
The Panel accepts the Complainant’s arguments that the worldwide fame of the Complainant’s MOMONDO trademark leaves no question of the Respondent’s awareness of the trademark at the time of the registration of the disputed domain name, which wholly incorporate the Complainant’s trademark MOMONDO, as recognized by numerous previous UDRP decision (Ga Modefine, Giorgio Armani S.p.A. v. Kim Hontage,WIPO Case No. D2007-0851; Ga Modefine, Giorgio Armani S.p.A. v. Ahmad Haqqi, WIPO Case No. D2007-0834; Ga Modefine v. AES Optics, WIPO Case No. D2000-0306; Ga Modefine, Giorgio Armani S.p.A. v. Jung Dong Kwon,WIPO Case No. D2004 -1103). Moreover, the Respondent is using the disputed domain name to attract Internet users seeking a website linked to the Complainant and to its trademark MOMONDO to the Respondent’s own website, without the Respondent being in a position to legitimately offer services under this mark. Because the trademark MOMONDO is so well known, the Respondent has attempted to attract, for commercial gain, Internet users by confusion as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of products or services thereon. The Panel accepts the arguments of the Complainant, that the Respondent is obviously seeking to profit from and exploit the Complainant’s trademark by diverting Internet users to the Respondent’s parking website from which it receives „click through“ revenue. In view of this, the Complainant asserts that the Respondent cannot claim to be making a legitimate noncommercial or fair use of the disputed domain name. The Panel finds that this conduct falls whithin the example of bad faith registration and use of paragraph 4(b)(iv) of the Policy.
For the above cited reasons, the Panel finds that the disputed domain name was registered and is being used in bad faith and therefore the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case. 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.
Ladislav Jakl
Sole Panelist
Date: October 11, 2013
Full & Egal Universal Law Academy