The Complainant is Trivago N.V., Germany, represented by Katharina Frey, Germany.
The Respondent is AMIT GAUR, India. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 1, 2019. On April 1, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 2, 2019, 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 April 9, 2019 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 April 11, 2019.
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 the Respondent of the Complaint, and the proceedings commenced on April 12, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 2, 2019.
On April 12, 15 and 16, 2019 the Respondent sent informal messages to the Center but the Respondent did not submit any formal response. Accordingly, the Center notified the Parties about the commencement of the panel appointment process on May 7, 2019.
The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on May 14, 2019. 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 German-based company that operates a worldwide hotel comparison website, offering booking services and information about tourism and travel. It is the owner of:
- International trademark registration No. 910828 for the word mark TRIVAGO in classes 35, 38, 39 and 42, registered on August 18, 2006; and
- International trademark registration No. 1211017 for the word mark TRIVAGO in classes 35, 38, 39, 42 and 43, registered on November 18, 2013.
The disputed domain name was registered on March 23, 2019 and currently resolves to an active webpage displaying touristic information on Udaipur. 5. Parties’ Contentions A. Complainant
The Complainant asserts to maintain a well-known worldwide hotel comparison website providing booking and information services, also covering India, where the Respondent is located.
The Complainant further asserts that the disputed domain name is confusingly similar to its registered TRIVAGO trademark, especially in view of the offering of touristc information services under the disputed domain name.
As to the Respondent’s lack of rights or legitimate interests, the Complainant contends that:
(i) the Complainant is in no way affiliated with the Respondent; not having the Complainant licensed or permitted the Respondent to use its trademarks in any fashion;
(ii) the Respondent does not own any registration for the “trivago” trademark in India, according to a search conducted on the Indian trademark’s database (Annex 8 to the Complaint);
(iii) the webpage that resolves from the disputed domain name does not disclose any information on the Respondent;
(iv) the Respondent is using the disputed domain name to promote hotels, restaurants and event locations in Udaipur, publishing offers and discounts and is thus using the Complainant’s trademark to attract Internet users for commercial gain, what does not characterize a bona fide offering of goods or services or legitimate non-commercial use of the disputed domain name.
The Complainant also alleges that the disputed domain name was registered and is being used in bad faith since the Respondent is using it to offer tourist information and services, thus creating a likelihood of confusion between the Complainant’s well-known trademark and the disputed domain name, what is further enhanced by the fact that the Complainant’s trademark has no dictionary meaning, hence no connection with travelling, tourist information or temporary accommodation.
In addition to that, the Complainant asserts that the Respondent contacted it on the same date it registered the disputed domain name what indicates Respondent’s undoubtful knowledge of the Complainant’s trademark rights and bad faith. Lastly, the Complainant argues that the Respondent’s choice to retain a privacy shield is another evidence of Respondent’s bad faith so as to make it more difficult for the brand owners to take action against infringement, dilution and cybersquatting. B. Respondent
The Respondent did not formally reply to the Complainant’s contentions.
In his message of April 12, 2019 to the Center, the Respondent indicates that either “domain to purchase from me or War”; a statement rephrased on his message of April 15, 2019 to “[a]gain I am repeating if anyone want this domain they can purchase from me” later adding that “I want to use this domain for public interest and if anybody has any problem kindly contact me on my phone number”.
In his last message to the Center, on April 16, 2019, the Respondent stated that he would be ready to sell the disputed domain name “on the price I purchase that and the pain amount the lady has given me”. 6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth the following three requirements which have to be met for this Panel to order 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 disputed domain name has been registered and is being used in bad faith.
The Complainant must prove in this administrative proceeding that each of the aforementioned three elements is present so as to have the disputed domain name transferred, according to the Policy. A. Identical or Confusingly Similar
The Complainant has established rights in the TRIVAGO trademark, entirely reproduced in the disputed domain name (apart for the addition of the “.blog” Top-Level Domain that is not to be taken into consideration).
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances that indicate the Respondent’s rights or legitimate interests in the disputed domain name. These circumstances are:
(i) before any notice of the dispute, the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name, in spite of not having acquired trademark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent, in his informal correspondence with the Center indicated that he was willing to “use this domain for public interest”. The actual use made of the disputed domain name by the Respondent, however, clearly indicates otherwise: the Respondent has been using the disputed domain name to promote hotels, restaurants and event locations in Udaipur, publishing offers and discounts and is thus using the Complainant’s trademark to attract Internet users for his commercial gain misleadingly diverting the Complainant’s consumers, what does not characterize a bona fide offering of goods or services or legitimate noncommercial use of the disputed domain name.
Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name. C. Registered and Used in Bad Faith
The Policy indicates in paragraph 4(b) that bad faith registration and use can be found when “(iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other 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”.
In the present case, the Respondent’s conduct, while promoting hotels, restaurants and event locations in Udaipur, publishing offers and discounts, does not provide any physical address or details relating to where it would be established, indicates a clear lack of bona fide offering of goods or services, creating a likelihood of confusion with the Complainant’s mark and potential tarnishment of the Complainant’s mark.
For the reasons stated above, the Respondent’s conduct has to be considered, in this Panel’s view, as bad faith registration and use pursuant to paragraph 4(b)(iv) 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 the Complainant.
Wilson Pinheiro Jabur
Sole Panelist
Date: May 28, 2019
Full & Egal Universal Law Academy