The Complainant is Trivago N.V., Germany, represented by Simon Thompson, Germany.
The Respondent is mohamed ashraf, Egypt. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 8, 2019. On August 9, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the 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 12, 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 August 12, 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 August 16, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 5, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 9, 2019.
The Center appointed Olga Zalomiy as the sole panelist in this matter on October 11, 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 company located in Germany, which specializes in Internet-related services in the hotel and meta search fields. The Complainant owns several trademark registrations for the TRIVAGO trademark, such as International Trademark Registration no. 910828, registered on August 18, 2006 in classes 35, 38, 39, and 42, and International Trademark Registration no. 1211017, registered on November 18, 2013 in classes 35, 38, 39, 42, 43.
The Respondent registered the Domain Name on January 22, 2019. The Domain Name directs to a website offering cheap hotel booking services. 5. Parties’ Contentions A. Complainant
The Complainant contends that it owns trademark registration for the TRIVAGO trademark. The Complainant contends that is maintains a well-known worldwide hotel prices comparison website under the ˂˃ domain name.
The Complainant claims that the Domain Name is confusingly similar to its TRIVAGO mark because both the Domain Name and the trademark consists of three syllables, two of which are identical. The Complainant argues that both aurally and visually the Domain Name and the Complainant’s mark are virtually identical.
The Complainant states that the Respondent has no rights or legitimate interests in respect of the Domain Name because it is not commonly known by the Domain Name, has not received any licenses or permissions from the Complainant to use the Complainant’s trademark in any way, does not own any trademarks for the Domain Name, and its website contains no identifying features. The Complainant claims that there is no evidence that the Respondent is making a bona fide or legitimate noncommercial or fair use of the Domain Name because he is using the Domain Name to direct to a website that offers a comparison of hotel prices by using one of the Complainant competitor’s services.
The Complainant contends that the Respondent registered and is using the Domain Name in bad faith. The Complainant states that the Respondent intentionally attempts to attract, for commercial gain, Internet users to his website 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 of service on the Respondent’s website. The Complainant claims that the Respondent is using the Domain Name, which is similar to the Complainant’s well-known trademark, to direct to a website that offers services similar to those of the Complainant by using one of the Complainant competitor’s meta search engine. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the UDRP, to succeed in this proceeding, the Complainant must prove each of these elements regarding each of the Domain Names:
(i) the 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 Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
To succeed under the first UDRP element, the Complainant is required to prove that the Domain Name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights.
Pursuant to section 1.2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “[w]here the complainant holds a nationally or regionally registered trademark or service mark, this prima facie satisfies the threshold requirement of having trademark rights for purposes of standing to file a UDRP case”. The evidence on file shows that the Complainant owns several trademark registrations for the TRIVAGO trademark, therefore, the Complainant proved its standing.
It is well-established that a domain name, which contains a common or obvious misspelling of a trademark, will be found to be confusingly similar to such trademark, where the misspelled trademark is sufficiently recognizable in the domain name. Here, the Domain Name consists of the word “trivalow” and the generic Top-Level Domain (“gTLD”) suffix “.com”. The only difference between the Domain Name and the Complainant’s TRIVAGO trademark is the use of the letter “l” instead of the letter “g” and the addition of the letter “w” in the end of the word, which does not prevent finding of confusing similarity.
While generally, the content of the website associated with a domain name is disregarded from the confusing similarity test, in circumstances, where it appears prima facie that the respondent seeks to target a trademark through the disputed domain name, panel may take a note of it. Here, the Domain Name directs to a website offering services similar to those of the Complainant’s services. This confirms that the Respondent seeks to target the Complainant’s TRIVAGO trademark through the Domain Name, which supports a finding of confusing similarity between the Domain Name and the trademark.
The gTLD “.com” does not detract from confusing similarity because “[t]he applicable Top Level Domain (“TLD”) in a domain name […] is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test.”
Thus, the Domain Name is confusingly similar to the Complainant’s TRIVAGO trademark and the first element of the UDRP has been satisfied. B. Rights or Legitimate Interests
To succeed under the second UDRP element, the Complainant must make a prima facie case in respect of the lack of rights or legitimate interests of the Respondent.
The Complainant alleges, and the Respondent does not contradict it, that it has not licensed or permitted the Respondent to use the Complainant’s TRIVAGO trademark in domain names, or for any other purpose.
The evidence on file also shows that the Respondent has not been commonly known by the Domain Name because the Respondent’s name is different from the Domain Name and because the Respondent’s website contains no information about the Respondent’s identity.
The Respondent is not using the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services because the Respondent is trying to trade on the popularity of the Complainant’s mark by using the Domain Name that is confusingly similar to the Complainant’s trademark to direct to a website, which is offering the same services as the Complainant does.
Nor is there any evidence that the Respondent using the Domain Name for a legitimate noncommercial or fair purpose, without intent for commercial gain because the Respondent is using the Domain Name to misleadingly divert consumers from the Complainant’s website.
The Panel finds that the Complainant has made out the prima facie case, so the burden of producing evidence demonstrating it has rights or legitimate interests in the Domain Name shifted to the Respondent. Because the Respondent failed to present any rebutting evidence, the Complainant is deemed to have satisfied the second element of the UDRP. C. Registered and Used in Bad Faith
Under the third UDRP element, the Complainant is required to prove that the Domain Name was registered and is being used in bad faith.
First, it is well-established, that “the mere registration of a domain name that is identical or confusingly similar (particularly domain name comprising typos […]) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith.” See Section 3.1.4 of the WIPO Overview 3.0. The evidence on file shows that the Complainant’s trademark is widely known, therefore the Respondent’s unauthorized registration of the Domain Name that is confusingly similar to the Complainant’s trademark is in bad faith.
Second, the registration of the Domain Name, which contains a misspelling of the Complainant’s TRIVAGO trademark and which is virtually identical to the Complainant’s domain name, constitutes registration and use bad faith. See, Go Daddy Software, Inc. v. Daniel Hadani,WIPO Case No. D2002-0568 (where the panel found that typosquatting is virtually per se registration and use in bad faith).
Third, the Respondent’s registration and use of the Domain Name constitute bad faith under paragraph 4(b)(iv) of the Policy, because the Respondent has used the Domain Name to intentionally attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s TRIVAGO trademark as to the source, sponsorship, affiliation, and/or endorsement of the Domain Name and the Respondent’s website. The Respondent is using the Domain Name that is confusingly similar to the Complainant’s trademark in connection with services similar to those of the Complainant. It is likely that the Respondent is trying to exploit fame of the Complainant’s mark for its financial benefit by diverting Complainant’s customers.
Therefore, the Panel finds that the Domain Name was registered and is being used in bad faith and that the Complainant has satisfied the third UDRP element. 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 Domain Name be transferred to the Complainant.
Olga Zalomiy
Sole Panelist
Date: October 15, 2019
1 Section 1.9, WIPO Overview 3.0.
2 Section 1.15, WIPO Overview 3.0.
3 Section 1.11.1, WIPO Overview 3.0.
4 See, Section 2.3, WIPO Overview 3.0.
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