Complainant is Travelpro International, Inc. of Boca Raton, Florida, United States of America ("United States"), represented by Akerman LLP, United States.
Respondent is SnapN, Inc. of Portland, Oregon, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with B LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 4, 2015. On September 9, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 9, 2015, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the Registrant's 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 16, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 6, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on October 7, 2015.
The Center appointed Jeffrey D. Steinhardt as sole panelist in this matter on October 26, 2015. 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 is owner of several registrations worldwide for its widely known TRAVELPRO family of trademarks, including, for example, TRAVELPRO (Word Mark), United States Trademark Registration No. 1587822 in International Class 18, registered March 20, 1990.
The disputed domain name was registered June 11, 2015, and currently routes to a webpage containing links to commercial offerings. 5. Parties' Contentions A. Complainant
Summarizing its legal contentions, Complainant alleges that (1) the disputed domain name is confusingly similar to Complainant's trademarks, (2) Respondent has no rights or legitimate interests in the disputed domain name, and (3) the disputed domain name was registered and is being used in bad faith, all in violation of the Policy.
Complainant's annexes to the Complaint contain screen captures that allegedly show that Respondent uses the disputed domain name to display links to commercial offerings of products that are in direct competition with Complainant's business under Complainant's marks.
On this basis, Complainant seeks transfer of the disputed domain name. 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. A. Identical or Confusingly Similar
While Complainant alleges only that the disputed domain name is confusingly similar to Complainant's trademarks, the Panel finds that the disputed domain name is identical to the TRAVELPRO trademarks in the sense of the Policy.
Panels usually disregard the domain name suffix (or top-level domain "TLD") in evaluating identity or confusing similarity. E.g., VAT Holding AG v. V,WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc.,WIPO Case No. D2006-1315.
Omitting the ".info" suffix (the TLD), the disputed domain name adopts Complainant's trademark in its entirety.
The Panel finds therefore that the disputed domain name is identical to the registered trademarks of Complainant and that the requirements of 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.
Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in the use of a domain name. The list includes:
(1) the use of the domain name in connection with a bona fide offering of goods and services;
(2) being commonly known by the domain name; or
(3) the making of a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers.
A complainant must show a prima facie case that a respondent lacks rights or legitimate interests. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet ILtd., WIPO Case No. D2003-0455.
Complainant alleges that Respondent's use does not fulfill the latter two circumstances listed above and that Respondent has no trademark rights that would permit it to use the trademark in a domain name. In the absence of a Response, the Panel accepts these factual allegations as true.
The Panel further notes that the use of a website for pay-per-click or sponsored link advertising constitutes commercial use, which would eliminate the possibility of legitimate noncommercial or fair use. See, e.g., The Bear Stearns Companies Inc. v. Darryl Pope, WIPO Case No. D2007-0593 ("[t]he 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)); 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. 1
The Panel further concludes that there is no bona fide use since Respondent's website displays links to commercial offerings of products that directly compete with Complainant's products associated with the TRAVELPRO marks.
The Panel finds that Complainant has established a prima facie case. Refraining from submitting a formal response, Respondent has brought to the Panel's attention no circumstances from which the Panel could infer that Respondent has rights or legitimate interests in making use of the disputed domain name.
The Panel rules therefore that Complainant has established the second element of paragraph 4(a) of the Policy. 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, as elaborated below.
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 bad faith 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.
Examining the circumstances in this case, the Panel infers that Respondent was undoubtedly aware of Complainant's TRAVELPRO marks, which had been registered and enjoyed widespread international use for many years. The Panel finds that Respondent deliberately included the TRAVELPRO mark in the disputed domain name to create confusion and attract Internet users to Respondent's website for commercial gain. Therefore, the Panel concludes that Respondent registered the disputed domain name in bad faith.
Complainant provided screen captures of Respondent's webpage displays. In the absence of a response by Respondent, the Panel finds that those images are reliable evidence of the appearance of the website to which the disputed domain name routed prior to the filing of this proceeding.
Those screen displays show that the disputed domain name was being used to promote and commercialize products and services similar to Complainant's. The Panel concludes that this activity evidences bad faith use by Respondent. Pfizer Inc. v. jg a/k/a Josh Green,WIPO Case No. D2004-0784; DaimlerChrysler Corporation and DaimlerChrysler Services North America LLC v. LaPorte Holdings, Inc.,WIPO Case No. D2005-0070.
The Panel further finds that Respondent's failure to reply to the Complaint is cumulative evidence of use in bad faith.
Consequently, the Panel concludes that the requirements of the third element of Policy, paragraph 4(a) are fulfilled. 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 Complainant.
Jeffrey D. Steinhardt
Sole Panelist
Date: November 8, 2015
1 Thus, the Panel disagrees with the Complaint's allegation that the absence of evidence of direct product offerings by Respondent on its webpage precludes the possibility of commercial use.
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