The Complainant is HomeAway.com, Inc., United States of America (“United States”), represented by Kilpatrick Townsend & Stockton LLP, United States.
The Respondent is LIU DE Bang, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 12, 2020. On February 12, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 13, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the 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 the Respondent of the Complaint, and the proceedings commenced on February 19, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 10, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 16, 2020. The Center appointed Jonathan Agmon as the sole panelist in this matter on April 2, 2020. 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, HomeAway.com, Inc., is owned by Expedia, Inc., a large international travel company. The Complainant acquired VRBO.com, Inc., formerly known as VRBO.com, LLC, on December 31, 2010. The Complainant has sites that represent over two million online bookable listings of vacation rental homes and apartments in more than 190 countries. The Complainant is the owner of numerous trademark registrations for the VRBO mark, including but not limited to the following: - VRBO (Registration No. 76505701) registered in the United States of America on March 9, 2004; - VRBO (Registration No. TMA889736) registered in Canada on November 10, 2014; and - VRBO (Registration No. 33372168) registered in China on May 14, 2019. The Complainant is also the owner of the domain name The disputed domain name was registered on December 15, 2019 and presently resolves to a website in Mandarin offering gambling services. 5. Parties’ Contentions A. Complainant The Complainant’s contentions include the following: The Complainant argues that the disputed domain name is confusingly similar to the VRBO mark on the basis that the disputed domain name wholly incorporates the VRBO mark, and that the addition of the word “help” does not prevent a finding of confusing similarity with the VRBO mark. The Complainant also argues that the Respondent does not have any rights or legitimate interests in the disputed domain names. The Respondent is not affiliated with the Complainant nor did the Complainant license or authorize the Respondent to use the VRBO mark. The Complainant further argues that the disputed domain name has been registered and is being used in bad faith as the Respondent should have known of the Complainant’s VRBO mark at the time of registration of the disputed domain name. The Complainant also asserts that the disputed domain name is being used in bad faith as the disputed domain name resolves to a webpage offering gambling services and thus the Respondent is using the disputed domain name with the intention to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s trademark. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy requires the complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The Complainant has provided evidence of its numerous trademark registrations for the VRBO mark in numerous jurisdictions. A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The disputed domain name incorporates the Complainant’s VRBO mark in its entirety (see Wal-Mart Stores, Inc. v. Kuchora, Kal,WIPO Case No. D2006-0033; Hoffmann-La Roche Inc. v. Andrew Miller,WIPO Case No. D2008-1345). The disputed domain name differs from the VRBO mark by the addition of the word “help” and the generic Top-Level Domain (“gTLD”) suffix “.com”. It is well-established where a complainant’s trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8; Novartis AG v. Radu LucaWIPO Case No. D2016-2582). Thus, the addition of the word “help” does not avoid confusing similarity. It is also established that the addition of a gTLD to a disputed domain name does not avoid confusing similarity as the use of a gTLD is technically required to operate a domain name (see Accor v. Noldc Inc.,WIPO Case No. D2005-0016; F. Hoffmann-La Roche AG v. Macalve e-dominios S.A.,WIPO Case No. D2006-0451; WIPO Overview 3.0, section 1.11). Thus, the addition of the gTLD “.com” is without significance and does not prevent a finding of confusing similarity. In the particular circumstances of the present case, the Panel is of the view that the disputed domain name is identical or confusingly similar to the Complainant’s trademark in which the Complainant has rights. B. Rights or Legitimate Interests Once the complainant establishes a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name, the burden of production shifts to the respondent to show that it has rights or legitimate interests in respect to the disputed domain name (see WIPO Overview 3.0, section 2.1). In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and the Respondent has failed to assert any such rights or legitimate interests. The Complainant has provided evidence that it owns numerous trademark registrations in many jurisdictions long before the disputed domain name was registered and that it has not licensed or otherwise permitted the Respondent to use the Complainant’s VRBO mark (see LEGO Juris A/S v. DomainPark Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master,WIPO Case No. D2010-0138). The Complainant has also provided evidence that the Respondent is not commonly known by the disputed domain names. The WhoIs records show that the disputed domain name is registered under “LIU DE Bang” which bears no resemblance to the disputed domain name in any way (see Sportswear Company S.P.A. v. Tang Hong, WIPO Case No. D2014-1875; WIPO Overview 3.0, section 2.3). Finally, the disputed domain name redirects to a webpage offering gambling services. As found by past UDRP panels, this use is neither a bona fide offering of goods and services for the purposes of the Policy nor is it a legitimate noncommercial or fair use in the circumstances of this case (Sanofi and Genzyme Corporation v. zhanghui,WIPO Case No. D2018-2926). In the present case, the Respondent did not submit a Response to the Complaint and did not provide any explanation or evidence to show rights or legitimate interests in the disputed domain name to rebut the Complainant’s prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The complainant must also show that the respondent registered and is using the disputed domain name in bad faith (see Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy. The Complainant has submitted evidence which shows that the Respondent registered the disputed domain name long after the Complainant’s trademark registrations. According to the evidence filed by the Complainant, the Complainant has owned registrations for its VRBO trademarks since 2004 and these registrations were active at the time the Respondent registered the disputed domain name in 2019. Given the distinctive nature of the VRBO mark and the evidence provided by the Complainant, the Panel draws the inference that the Respondent knew or should have known about the Complainant’s VRBO trademark. The Panel therefore finds it inconceivable that the Respondent could have registered the disputed domain name without knowledge of the Complainant’s VRBO mark and intention of benefiting from confusion with such trademarks (see Leite’s Culinaria, Inc. v. Gary Cieara,WIPO Case No. D2014-0041; WIPO Overview 3.0, section 3.2.2). Furthermore, the disputed domain name is confusingly similar to the Complainant’s VRBO trademark, which under the particular circumstances of this case, the Panel finds is an attempt by the Respondent to confuse and/or mislead Internet users seeking or expecting the Complainant. Previous UDRP panels ruled that in such circumstances “a likelihood of confusion is presumed, and such confusion will inevitably result in the diversion of Internet traffic from the Complainant’s site to the Respondent’s site” (see WIPO Overview 3.0, section 3.1.4; Edmunds.com, Inc v. Triple E Holdings Limited,WIPO Case No. D2006-1095). To this end, prior UDRP panels have established that attracting Internet traffic by using a domain name that is identical or confusingly similar to a registered trademark may be evidence of bad faith under paragraph 4(b)(iv) of the UDRP. The Complainant also provided evidence showing that the disputed domain name resolves to a webpage offering gambling services, and some porn related advertisement. Such use of the disputed domain name is clear evidence of the Respondent intention to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant’s trademarks under paragraph 4(b)(iv) of the Policy. In addition, the Respondent did not submit a Response in this proceeding which is a further indication of the Respondent’s bad faith, which was considered by the Panel. Based on the evidence presented to the Panel, including the registration of the disputed domain name after the registration of the Complainant’s trademark, the confusing similarity between the disputed domain name and the Complainant’s trademark, the Respondent’s use of the disputed domain name, and the failure of the Respondent to submit a response, the Panel draws the inference that the disputed domain name was registered and is being used in bad faith. Accordingly, having regard to the circumstances of this particular case, the Panel finds that the Complainant has met its burden under paragraph 4(a)(iii) 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 Jonathan Agmon
Sole Panelist
Date: April 16, 2020
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