The Complainant is LateRooms Limited of Manchester, United Kingdom of Great Britain and Northern Ireland (United Kingdom), represented by SafeNames Ltd., United Kingdom.
The Respondent is Carolina Rodrigues of Santiago, Chile. 2. The Domain Names and Registrar
The disputed domain names ; ; ; ;
are registered with Internet Domain Service BS Corp (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 10, 2016. On May 10, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On May 13, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 13, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 18, 2016.
The Center verified that the Complaint together with the amended Complaint (hereinafter both referred together as 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 the Respondent of the Complaint, and the proceedings commenced on May 19, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 8, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on June 9, 2016.
The Center appointed Dennis A. Foster as the sole panelist in this matter on June 15, 2016. 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 is a well-established United Kingdom company with a global online reach in connection with hotel reservation services. It has acquired European Union Trade Mark ("EUTM") registrations for both the LATEROOMS mark (i.e., Registration No. 004864955; registered on April 20, 2007) and the LATEROOMS.COM mark (i.e., Registration No. 004880969; registered on February 8, 2007).
The Respondent is the registrant of the disputed domain names, , , , and , which were all registered on March 23, 2013. All of the disputed domain names resolve to the Complainant's website. 5. Parties' Contentions A. Complainant
- In operation since 1999, the Complainant is a United Kingdom company that is involved in the online booking of hotel reservations. Employing a staff of 300, the Complainant has a global reach. It conducts business in several languages and has won an award for its social media presence.
- The Complainant uses the LATEROOMS service mark and operates online with the domain name, . The Complainant has also registered the mark LATEROOMS.COM.
- All of the disputed domain names, , , , and , are at least confusingly similar to the Complainant's LATEROOMS mark. All the disputed domain names are the same length as the LATEROOMS mark (minus the generic Top-Level Domain ("gTLD") ".com"), and feature either the same letters in slightly different orders or the same letters excluding the substitution of one letter.
- The Respondent has no rights or legitimate interests in the disputed domain names. The Respondent has received no authorization or license to use the Complainant's mark. Moreover, the disputed domain names merely resolve to the Complainant's website, so the Respondent possesses no independent trademark rights in said names. Also, there is no evidence that the Respondent is commonly known as any of the disputed domain names. Finally, there is nothing in any of the Complainant's agreements that would allow any of its affiliates to use its mark in a domain name.
- The disputed domain names were registered and are being used in bad faith. The disputed domain names were all registered on the same day and merely redirect Internet traffic to the Complainant's website. This creates the false impression that the disputed domain names are owned by or connected with the Complainant. Prior to a cease-and-desist letter sent by the Complainant to the Respondent, the disputed domain names were linked to a website that offers services that compete directly with those of the Complainant. Clearly, the current redirection could be altered again to send Internet traffic to a competing website. 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 Panel may find for the Complainant and grant it a transfer of the disputed domain names, , , , and , if the Complainant can prove that:
- The disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the disputed domain names; and
- The disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
Since the Complainant has provided the Panel with clear evidence (Annex 2) of its EUTM registrations for both the marks, LATEROOMS and LATEROOMS.COM, the Panel concludes that the Complainant owns sufficient rights in each for the purposes of Policy paragraph 4(a)(i). See, Accurist Watches Limited v. Whois Privacy Services Pty Limited / Dana Daste,WIPO Case No. D2011-1328 ("The Panel finds that the Complainant does have trademark rights in the mark ACCURIST by virtue of United Kingdom Registration Nos. 617719 and 148757, and CTM Registration No. 71159, and by the other registrations listed in the Complaint."); and Verizon Trademark Services LLC v. Van Groenendael Adviesgroep,WIPO Case No. DNL2008-0029 ("The Complainant holds the CTM registrations...for the word mark VERIZON...Therefore, the Panel finds that the Complainant has rights in the VERIZON [mark]").
The Panel notes by visual inspection that none of the disputed domains names is identical to either of the Complainant's marks LATEROOMS and LATEROOMS.COM. However, that same inspection reveals that all of the disputed domain names are similar to those marks, differing only in the rearrangement of letters or the substitution of a single letter. The disputed domain names, , and , are, in the Panel's view, clearly confusingly similar to both the LATEROOMS and LATERROOMS.COM marks, as they contain the same set of letters with minor, but deliberate, misspellings of either "late" or "rooms". The Panel finds this to be a classic typosquatting scenario, wherein an Internet user, seeking the website of a well-known trademark or service mark holder, may be led to an unwanted website because the user inadvertently typed two letters out of sequence. See, Ross-Simons, Inc. v. Domain.Contact,WIPO Case No. D2003-0994 (March 3, 2004) ("'Typosquatting' is a practice in which a respondent registers domain names with slight misspellings of a complainant's mark to divert Internet traffic. There are a substantial number of panel decisions which have found that such domain names are confusingly similar to the marks which they misspell.").
The remaining two disputed domain names, and , present slightly different cases of similarity. In making this distinction between the disputed domain names, the Panel is cognizant of the fact that the Complainant's mark is composed of two common terms and is thus not a clearly inherently distinctive mark. Accordingly, minor variations may be less likely to cause confusion among internet users. See, Bang & Olufsen a/s v. Unasi Inc.,WIPO Case No. D2005-0728 ("Domain names which differ from a trademark by only minor variations have a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive"); and Reuters Limited v. Global Net 2000, Inc,WIPO Case No. D2000-0441.
Moreover, on some occasions, prior UDRP panels have denied findings of confusing similarity even when only one letter of a relatively weak mark has been substituted. In eC, Inc. v. Cox, Davis & Simpsom, LLC, Mr. Ken Cox, Mr. Brian Simpson, Mr. Ron Davis,WIPO Case No. D2004-0552, the panel found no confusing similarity between and the ESPIN THE BOTTLE mark, while stating "…the Panel believes that a single-letter difference does not automatically prove confusing similarity under paragraph 4(a)(i) of the Policy." That panel also noted that "[t]he one-letter change is not a misspelling of Complainant's mark that results in an otherwise nonsensical word or phrase."
In the case of , the letter "y" is substituted for the letter "t". The Panel views this as an insignificant difference, as the term "laye" is not an English language word. Thus the full term, "layerooms" or "laye rooms", is meaningless or "nonsensical", but clearly similar enough to the marks, LATEROOMS and LATEROOMS.COM, as to be confusing to a reasonable Internet user.
On the other hand, the term, "laze", is an English language word – albeit a perhaps uncommon one. However, the Panel believes that the full term, "lazerooms" or "laze rooms", has no apparent common or descriptive meaning on its own. So, again, the Panel is persuaded that that term is essentially nonsensical. Therefore, the Panel concludes that is also confusingly similar to both the LATEROOMS and LATEROOMS.COM marks.
As a result, the Panel finds that the Complainant has shown that the disputed domain names are identical or confusingly similar to a service mark in which the Complainant has rights. B. Rights or Legitimate Interests
The Complainant has demonstrated to the Panel's satisfaction that the disputed domain names are confusingly similar to the Complainant's validly registered marks. Moreover, the Complainant contends that the Respondent has been granted no license or permission to use either of those marks. As such, the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in those names, to which the Respondent must offer a convincing rebuttal in order to prevail on this issue. See, Hermès International v. Registrant [3585485]: Boris Moser,WIPO Case No. D2011-0406 ("It is the consensus view of WIPO UDRP panelists that once a complainant has established a prima facie case, it is respondent's responsibility to prove otherwise."); and TeliaSonera AB v. Hu Li,WIPO Case No. D2009-1195 ("...panels have typically accepted that once a complainant has established a prima facie case that a respondent lacks rights or legitimate interests, the burden of proof passes to the respondent to show that he or she does indeed have such a right or interest.").
The Respondent has declined to file a Response in this case, so the Panel is left on its own to discern whether a case can be made otherwise to counter the Complainant's prima facie case. In so doing, the Panel will consider as true any of the Complainant's reasonable contentions. See, RX America, LLC. v. Matthew Smith,WIPO Case No. D2005-0540 ("A respondent is not obliged to participate in a domain name dispute proceeding, but if it were to fail to do so, asserted facts that are not unreasonable would be taken as true and the respondent would be subject to the inferences that flow naturally from the information provided by the complainant.") and The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064 ("…the Panel's decision is based upon the Complainant's assertions and evidence and inferences drawn from the Respondent's failure to reply.").
The Complainant contends that all of the disputed domain names resolve currently to the Complainant's own website, after having resolved previously to a third party website that offers services that compete directly with those offered by the Complainant. The Panel accepts that contention as true and finds that neither activity corresponds to a bona fide offering of goods or services per Policy paragraph 4(c)(i) or a legitimate noncommercial or fair use of said domain names per Policy paragraph 4(c)(iii). See, for example, Alibaba Group Holding Limited v. Yifeng Tan,WIPO Case No. DAU2014-0029 ("...the disputed domain name was used to resolve to a website which contained sponsored links to various websites, including those of the Complainant and of its competitors...therefore, the disputed domain name is not being used in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use."). Finally, the Panel agrees with the Complainant's assertion that there is no evidence in the record to suggest that the Respondent, Carolina Rodrigues, is commonly known as any of the disputed domain names, rendering Policy paragraph 4(c)(ii) inapplicable to this case as well.
Finding Policy paragraph 4(c) inapplicable to this case and finding no other rationale to support the Respondent's position concerning this element of the Policy, the Panel concludes that the Complainant's prima facie case prevails.
As a result, the Panel finds that the Complainant has demonstrated that the Respondent has no rights or legitimate interests in the disputed domain names. C. Registered and Used in Bad Faith
As noted above, the Panel accepts the Complainant's contention that all of the disputed domain names redirect Internet users to the Complainant's website, after having resolved previously to the website of a competitor of the Complainant. In these circumstances, it is highly likely that the Respondent was aware of the Complainant's trademark when it registered the disputed domain names. In addition, the Panel is of the opinion that, on the balance of probabilities, the initial redirection was likely accompanied by click-through fees, at least partially payable to the Respondent. Such activity, dependent on likely confusion between the disputed domain names and the Complainant's marks as to the source, sponsorship, affiliation or endorsement of the final website displayed, constitutes bad faith registration and use of the disputed domain names by the Respondent per Policy paragraph 4(b)(iv). See, L'Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc,WIPO Case No. D2005-0623 ("...exploitation of the reputation of trademarks to obtain click-through commissions from the diversion of internet users is a common example of use in bad faith as referred to in paragraph 4(b)(iv) of the Policy..."); and Caesars Entertainment, Inc. v. Infomax, Ltd.,WIPO Case No. D2005-0032 ("The Panel is satisfied that the Respondent is intentionally using the Domain Name to attract internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's well-known mark, and that the Respondent gains commercially from such confusion by receiving "click-through" commissions. This constitutes evidence of registration and use in bad faith in accordance with paragraph 4(b)(iv) of the Policy.").
The Panel also believes that the Complainant is correct in asserting that the present use of the disputed domain names, redirection to the Complainant's website, fails to rectify the Respondent's previous miscreance as noted above, because that redirection could be easily altered back to the prior bad faith usage. Ergo, the Panel concludes that Policy paragraph 4(b)(iv) remains applicable to this Policy element under the present deployment of the disputed domain names. In addition, even if the disputed domain names continue to redirect to the Complainant's website, such redirections may cause confusion on Internet users as to the relationship between the disputed domain names and the Complainant.
As a result, the Panel finds that the Complainant has proven that the disputed domain names were registered and are being used 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 names, , , , and , be transferred to the Complainant.
Dennis A. Foster
Sole Panelist
Date: June 29, 2016
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