Complainant is Fareportal Inc. of New York, New York, United States of America (“United States” or “U.S.”), represented by Cowan, DeBaets, Abrahams & Sheppard, LLP, of New York, New York, United States.
Respondent is Domain Admin, C/O ID #10760, Privacy Protection Service INC d/b/a PrivacyP of Nobby Beach, Australia / MR VARUN GUPTA, MY FARE PORTAL of Miami, Florida, United States. 2. The Domain Name and Registrar
The disputed domain name (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 March 21, 2017. On March 22, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 23, 2017, 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 Complainant on March 24, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amended Complaint. Complainant filed an amended Complaint on March 28, 2017.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on March 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 17, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 18, 2017.
The Center appointed Douglas M. Isenberg as the sole panelist in this matter on April 25, 2017. 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 states that it is “a technology company that develops computer software used to power travel-related websites, including the highly successful, multi-national, Internet-based travel agencies and ”; that it “offers high-value, low-cost travel-related services including airfare, temporary lodging, car rentals, and vacation packages”; and that it “maintains a high-traffic, travel-related website at ”.
Complainant further states, and provides evidence to support, that it is the owner of U.S. Reg. No. 4,356,358 for the trademark FAREPORTAL (first used in commerce on January 1, 2002; registered June 25, 2013) for use in connection with, inter alia, “[p]roviding an on-line computer database in the field of travel information services.” This trademark is referred to herein as the “FAREPORTAL Trademark.”
The Disputed Domain Name was created on July 13, 2016, and is being used in connection with a website that Complainant describes as “a competing website” and that a screenshot shows offers travel-related information and/or resources. 5. Parties’ Contentions A. Complainant
Complainant contends, in relevant part, as follows:
- The Disputed Domain Name is confusingly similar to the FAREPORTAL Trademark because, inter alia, “courts and administrative panels have recognized that consumers expect to find a trademark owner on the Internet at a domain name address composed of the company’s name or mark”; and “the word ‘my’ does not preclude a finding of confusing similarity, as ‘adding descriptive or non-distinctive matter’ to another’s mark will not suffice to avoid a claim of infringement.”
- Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because, inter alia, the FAREPORTAL Trademark “belongs exclusively to [Complainant]”; “Respondent is not a licensee of [Complainant]”; Respondent has not “obtained permission, either express or implied” from Complainant to use the FAREPORTAL Trademark; “[t]here is no evidence that Respondent is or has ever been commonly known by the [Disputed] Domain Name”; and “Respondent uses the [Disputed] Domain Name to misdirect or ‘bait’ Internet users seeking to utilize or learn more about [Complainant’s] travel-related services to Respondent’s competing [website].”
- The Disputed Domain Name was registered and is being used in bad faith because, inter alia, “Respondent could not plausibly assert that, in registering the [Disputed] Domain Name, it was unaware of [Complainant’s] rights in the FAREPORTAL® Mark, especially where, as here, Respondent fully incorporates the FAREPORTAL® Mark into the [Disputed] Domain Name and directly competing … [w]ebsite”; “Respondent is also deemed to have constructive knowledge of Complainant’s trademark rights by virtue of Complainant’s federal registration for the FAREPORTAL® Mark”; “the misleading and deceptive travel-related services allegedly offered through the [Respondent’s] [w]ebsite reflects ‘paradigmatic bad faith’ and ‘supports the inference that Respondent registered this [Disputed] Domain Name with the bad faith intent to deceive consumers”; and “featuring another’s trademarks and offering services identical to those offered by the Complainant – and using the Complainant’s marks to suggest a connection between the [Disputed] Domain Name and the Complainant – is evidence of bad faith.” B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Pursuant to the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (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. Policy, paragraph 4(a). A. Identical or Confusingly Similar
Based upon the trademark registrations cited by Complainant, it is apparent that Complainant has rights in and to the FAREPORTAL Trademark.
As to whether the Disputed Domain Name is identical or confusingly similar to the FAREPORTAL Trademark, the relevant comparison to be made is with the second-level portion of the Disputed Domain Name only (i.e., “myfareportal”), as it is well established that the generic Top-Level Domain (“gTLD”) (i.e., “.com”) may generally be disregarded for this purpose. See the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.2 (“[t]he applicable top-level suffix in the domain name (e.g., ‘.com’) would usually be disregarded under the confusing similarity test (as it is a technical requirement of registration), except in certain cases where the applicable top-level suffix may itself form part of the relevant trademark”).
The Disputed Domain Name contains the FAREPORTAL Trademark in its entirety, plus the word “my”. As numerous previous UDRP panels (including this Panel) have found, the addition of the word “my” to a disputed domain name, in addition to a complainant’s trademark, “do[es] nothing to diminish confusing similarity.” Public Service Electric & Gas Company v. ryan roettger,WIPO Case No. D2012-0623.
Accordingly, the Panel finds that Complainant has proven the first element of the Policy. B. Rights or Legitimate Interests
Complainant has argued that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because, inter alia, the FAREPORTAL Trademark “belongs exclusively to [Complainant]”; “Respondent is not a licensee of [Complainant]”; Respondent has not “obtained permission, either express or implied” from Complainant to use the FAREPORTAL Trademark; “[t]here is no evidence that Respondent is or has ever been commonly known by the [Disputed] Domain Name”; and “Respondent uses the [Disputed] Domain Name to misdirect or ‘bait’ Internet users seeking to utilize or learn more about [Complainant’s] travel-related services to Respondent’s competing [website].”
Under the Policy, “a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP.” WIPO Overview 2.0, paragraph 2.1.
The Panel finds that Complainant has established its prima facie case and without any evidence from Respondent to the contrary, the Panel is satisfied that Complainant has satisfied the second element of the Policy. C. Registered and Used in Bad Faith
Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the respondent has registered or the respondent 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 respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) the respondent 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 respondent has engaged in a pattern of such conduct; or (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’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 respondent’s website or location or of a product or service on the respondent’s website or location. Policy, paragraph 4(b).
Complainant specifically alleges that bad faith exists pursuant to paragraph 4(b)(iv) of the Policy, that is, that “by using the domain name, [the respondent] has intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] web site or location or of a product or service on [the respondent’s] web site or location.” The Panel easily agrees. Where a “Respondent has been using the disputed domain name in order to pass off the Website as a website of or otherwise authorised or approved by the Complainant … [t]his is clear evidence of bad faith.” Inter-Continental Hotels Corporation v. lin qing feng,WIPO Case No. D2013-1639. See also The Dow Chemical Company v. dowaychemical eva_hwang@ +86.7508126859,WIPO Case No. D2008-1078 (finding bad faith where Complainant alleged that Respondent’s website “fraudulently impersonat[ed] the Complainant” because “[t]he Respondent was clearly specifically targeting the Complainant’s trademark and attempting to divert Internet users searching for the Complainant’s product to the Respondent’s website”).
Accordingly, the Panel finds that Complainant has proven the third element of the Policy. 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.
Douglas M. Isenberg
Sole Panelist
Date: May 9, 2017
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