Complainant is Priceline.com, LLC, United States of America (“United States”), represented by Bryan Cave Leighton Paisner LLP, United States.
Respondent is Steven Green, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 12, 2021. On January 12, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 13, 2021, 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 Complainant on January 13, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on January 17, 2021. 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 January 18, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 7, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 8, 2021. Following the Center’s notice of Respondent’s default, Respondent sent three email communications to the Center on February 8, 2021. The Center appointed Robert A. Badgley as the sole panelist in this matter on February 15, 2021. 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 has been an online travel booking service for more than 20 years. The PRICELINE mark has been used in commerce to identify and distinguish Complainant’s online services, which allow consumers to book flights, hotels, rental cars, and so forth at Complainant’s main website, “www.priceline.com”. The PRICELINE mark has been registered in numerous jurisdictions, including United States Patent and Trademark Office Reg. No. 2,272,659, registered on August 24, 1999, in connection with “travel agency services”. Complainant enjoys a fairly significant market share in the online travel booking sphere, with more than 100 million airplane tickets sold since 1997, and an average of 2.5 million hotel room nights booked per month. The Panel has no difficulty characterizing PRICELINE as a well-known trademark in the United States. The Domain Name was created on November 14, 2020. The Domain Name resolves to a parking page which features various hyperlinks to third-party commercial sites, such as “Orbitz Car Rental”, “Expedia Hotel”, and other travel-booking services in direct competition with Complainant. The parking page also states: “Interested in fuckpriceline.com? Our Domain Broker Service may be able to get it for you. Find out how”. 5. Parties’ Contentions A. Complainant Complainant asserts that it has established all three elements required under the Policy for a transfer of the Domain Name. B. Respondent Respondent did not reply to Complainant’s contentions. Rather, in a series of February 8, 2021 emails to the Center, Respondent stated that he had been “sick with Covid” and had “several eye surgeries” and hence had no time or “visual ability” to respond to the Complaint. Respondent did not ask for an extension of time within which to respond. Respondent also stated, “I would consider selling domain for money lost from [Complainant] Priceline’s inability to fulfill their agreements”. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) 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 The Panel concludes that Complainant has rights in the trademark PRICELINE through widespread registration and use demonstrated in the record. The Panel also concludes that the Domain Name is confusingly similar to the PRICELINE mark within the meaning of “confusing similarity” developed under the Policy. Although the word “fuck” arguably reduces the likelihood that an Internet user would believe that the Domain Name was associated with Complainant and its PRICELINE trademark, it is undeniable that the distinctive PRICELINE trademark is clearly recognizable within the Domain Name. Under the prevailing consensus under the UDRP, this latter fact is usually dispositive of the issue of confusing similarity under the first element of the UDRP. In the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), it is stated in section 1.8 (with emphasis added): “Where the relevant 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 under the first element”. See also Aldi Gmb & Co., K.G., et al. v. Contact Privacy Inc. Customer 1243650590,WIPO Case No. D2019-2289 ( Complainant has established Policy paragraph 4(a)(i). B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements: (i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name. Aside from some unspecified grievance that Complainant has cost him time and money, Respondent has not come forward to explain or prove any legitimate basis on which he registered the Domain Name. From the sparse account provided by Respondent (who never asked for an extension and provided no support for his claim to have been sick with Covid-19 or to have vision problems), it appears that Respondent is a disgruntled customer of Complainant with some sort of axe to grind. As noted above, the Domain Name resolves to a web page with hyperlinks to services in direct competition with Complainant. The failure of Respondent to actually use the Domain Name for criticism purposes (or to even advance any indication of his plans for the same), coupled with Respondent’s remark that he would be willing to sell the Domain Name to Complainant at a price that would allow him to recoup the money that, according to Respondent, Complainant somehow owes him, supports the Panel’s conclusion that Respondent did not register the Domain Name to air his grievances about Complainant but instead as some sort of leverage against Complainant to recoup what he claims is owed to him, and therefore, under the narrow terms of the Policy, Complainant has established Policy paragraph 4(a)(ii). C. Registered or Used in Bad Faith Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”: (i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or (ii) that 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 Respondent has engaged in a pattern of such conduct; or (iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or (iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. The Panel concludes that Respondent has registered and used the Domain Name in bad faith under the narrow terms of the Policy. The Panel incorporates its discussion above in the “rights or legitimate interests” section. It is obvious that Respondent targeted Complainant and its PRICELINE trademark. And even while the composition of the Domain Name makes it prima facie appear that it may be used for legitimate noncommercial criticism purposes, Respondent has not articulated in even the barest terms how he would intend to engage in such activity, but has instead made it clear that he would sell the Domain Name to recover money from Complainant. The Panel also finds bad faith use on this record, as Respondent’s primary motive appears to obtain leverage to recoup some unspecified monies he claims are owed to him, and thereby somehow avenging himself on Complainant for an apparently unsatisfactory experience with them. The Panel notes that the webpage at the Domain Name directs users to links competing with Complainant; while some cases have held that de minimis commercial activity may in certain circumstances be permissible even in criticism scenarios, ultimately the Panel does not find that this factor is alone determinative of the outcome here. As the Panel sees it, these are two issues here: potential criticism and potential monies owed. There is nothing wrong with criticizing Complainant, including (within certain parameters) through a domain name incorporating its mark with a pejorative word, and equally there is nothing wrong with seeking to be made whole for a grievance against Complainant (which is, the best the Panel can tell from the limited record, some form of contractual dispute); but using the Domain Name in a pretextual manner to seek to accomplish the latter cannot be condoned. The Panel makes bad faith findings under the above-quoted Policy paragraphs 4(b)(i) and 4(b)(iv). Complainant has established Policy paragraph 4(a)(iii). 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 Robert A. Badgley
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Sole Panelist
Date: February 25, 2021
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