The Complainant is Tourcom, Gie, France, represented by Fidal, France.
The Respondent is Whois Privacy Protection Foundation, Netherlands / Vikram Rathore, India, self-represented. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 15, 2021. On March 16, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 17, 2021, 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 8, 2021 providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. The Center received email communications from the Respondent on April 8 and April 9, 2021. The Complainant filed an amended Complaint on April 12, 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 the Respondent of the Complaint, and the proceedings commenced on April 13, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 3, 2021. The Complainant submitted a supplemental filing on April 13, 2021. The Center received email communications from the Respondent on April 13, 14 and April 20, 2021. The Center appointed Lynda M. Braun as the sole panelist in this matter on May 12, 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 The Complainant is a French company consisting of multiple licensed travel agencies. Established in 1990, the Complainant has practiced under the corporate name “TourCom” since that time. The Complainant is a leader in the tourism industry, is located in 80 countries, and consists of approximately 1200 associated travel agencies in France alone. The Complainant and its agencies offer travel services worldwide, providing guidance and information in connection with their proposed destinations, including India, where the Respondent purportedly resides and owns a travel agency unrelated to the Complainant. The Complainant owns registered trademarks in many jurisdictions worldwide. For example, the Complainant owns European Union Trade Mark Registration No. 004995742 for TOURCOM, registered on March 29, 2007, in International Classes 35, 36, 38, 39, 41, and 43. The classes most relevant to the Complainant’s business are International Class 39, which includes arranging customers’ transportation and tours, and booking seats for travel; International Class 41, which includes educational, sporting, cultural and entertainment services; and International Class 43, which includes hotel services and reservations. The Complainant also owns International Trademark Registrations (designating numerous jurisdictions through the Madrid Protocol), French Trademark Registrations, and additional European Union Trademark Registrations, all of the foregoing registered as design marks or logos.1 These TOURCOM logos appear at the top left of all pages of the Complainant’s official website, which uses blue as its signature color. The Complainant’s registered trademarks listed above are hereinafter collectively referred to as the “TOURCOM Mark”. The Complainant is also the owner of the domain name The Disputed Domain Name was registered on December 15, 2020, and resolves to the Respondent’s website, a travel business focused on India. Although there are other listed destinations, it appears that most of the website is unfinished. The services proposed by this website are almost identical to those offered by the Complainant. The Respondent copies the TOURCOM Mark, making a minor change (adding the letter “E”) to the TOURCOM Mark, thereby using “Tourecom” and reproducing it, in blue, at the top left of each page of the website, the same display used by the Complainant. 5. Parties’ Contentions A. Complainant The following are the Complainant’s contentions: - the Disputed Domain Name is confusingly similar to the Complainant’s trademark; - the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and - the Disputed Domain Name was registered and is being used in bad faith. The Complainant seeks the transfer of the Disputed Domain Name from the Respondent to the Complainant in accordance with paragraph 4(i) of the Policy. B. Respondent The Respondent did not submit a formal response, but sent several emails dated April 9, 13, 14, and 20, 2021, in which the Respondent stated that he owned his tour business and website that centered on India (in particular “spiritual Indian tours”), that it was unrelated to the Complainant’s business, and that he was willing to transfer the Disputed Domain Name, but for a substantial price. 6. Discussion and Findings The Panel notes that the Complainant submitted a supplemental filing on April 13, 2021 (in the form of an Amended Complaint), regarding the Respondent’s offer for sale the Disputed Domain Name included in its email communication to the Center sent on the same day. Noting that the Respondent’s email communication was not available at the time of the submission of the Complaint, and that the Respondent has had ample opportunity to comment on the Complainant’s supplemental filing (in fact the Respondent sent two email communications after the Complainant’s supplemental filing), the Panel has decided to accept this supplemental filing. However, even if the Panel had rejected the Complainant’s supplemental filing, the Panel would have found the same outcome in this decision. Paragraph 4(a) of the Policy requires that the Complainant prove the following three elements in order to prevail in this proceeding: (i) The Disputed Domain Name is identical or confusingly similar to 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 was registered and is being used in bad faith. A. Identical or Confusingly Similar This element consists of two parts: first, does the Complainant have rights in a relevant trademark and, second, is the Disputed Domain Name identical or confusingly similar to that trademark. The Panel concludes that the Disputed Domain Name is confusingly similar to the TOURCOM Mark as set forth below. First, the Complainant has established rights in the TOURCOM Mark based on its years of use as well as its registered trademarks for the TOURCOM Mark in France, the European Union and Internationally, including India, where the Respondent purportedly resides, and in many other jurisdictions worldwide. The general consensus is that registration of a mark satisfies the threshold requirement of having trademark rights for purposes of standing to file a UDRP case. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), at section 1.2.1 . Here, the Panel finds that the Complainant has rights in the TOURCOM Mark. The Disputed Domain Name Such an insignificant modification to a trademark is commonly referred to as “typosquatting”, as such conduct seeks to wrongfully take advantage of errors by users in typing domain names into their web browser’s location bar. See WIPO Overview 3.0, at section 1.9 (“A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.”); see also Express Scripts, Inc. v. Whois Privacy Protection Service, Inc. / Domaindeals, Domain Administrator,WIPO Case No. D2008-1302. Further, the addition of a gTLD such as “.com” in a domain name is technically required. Thus, it is well established that, as here, such element may typically be disregarded when assessing whether a domain name is identical or confusingly similar to a trademark. See Proactiva Medio Ambiente, S.A. v. Proactiva,WIPO Case No. D2012-0182 and WIPO Overview 3.0, section 1.11. Thus, the Panel concludes that the Disputed Domain Name is confusingly similar to the Complainant’s TOURCOM Mark. Based on the above, the Panel finds that the first element of paragraph 4(a) of the Policy has been met by the Complainant and that the Disputed Domain Name is confusingly similar to the Complainant’s TOURCOM Mark. B. Rights or Legitimate Interests Under the Policy, a complainant has to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, the respondent carries the burden of production of evidence that demonstrates rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview 3.0, section 2.1. There is no evidence in the record suggesting that the Respondent has rights or legitimate interests in the Disputed Domain Name. The Complainant has not authorized, licensed, or otherwise permitted the Respondent to use the Complainant’s TOURCOM Mark. There is also no evidence that the Respondent is known by the Disputed Domain Name or by any similar name and there is no evidence that the Respondent is a tour agency affiliated (or not) with the Complainant or its business. Moreover, the Panel finds that the Disputed Domain Name carries a risk of implied affiliation, as customers may falsely believe that the Disputed Domain Name represents a travel agency that is part of or affiliated with the Complainant in India. See WIPO Overview 3.0, section 2.5.1. Finally, the Complainant does not have any business relationship with the Respondent and based on the use made of the Disputed Domain Name to resolve to a website that is similar in content, layout and color to the Complainant’s official website, displaying a misspelling of the Complainant’s TOURCOM Mark, the Panel finds that the Respondent is not making a bona fide offering of services nor making a legitimate noncommercial or fair use of the Disputed Domain Name. In addition, the Panel notes that the website at the Disputed Domain Name has not been developed in full (containing several “lorem ipsum” statements), which further affirms that the Respondent lack rights or legitimate interests (without any evidence of an actual and legitimate business behind the Disputed Domain Name). Based on the above, the Panel finds that the second element of paragraph 4(a) of the Policy has been met by the Complainant and that the Respondent has no rights or legitimate interests in the Disputed Domain Name. C. Registered and Used in Bad Faith This Panel finds that, based on the record, the Complainant has demonstrated the existence of the Respondent’s bad faith pursuant to paragraph 4(b) of the Policy. First, the Respondent attempted to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s TOURCOM Mark. The Panel finds that the Respondent registered the Disputed Domain Name to attract customers to its website by using a domain name that is confusingly similar to the Complainant’s TOURCOM Mark. The use of a domain name to intentionally attempt to attract Internet users to a registrant’s website by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website for commercial gain demonstrates registration and use in bad faith. Second, the Respondent’s registration of the Disputed Domain Name that contains a misspelling of the TOURCOM Mark in an effort to take advantage of a typographical error is evidence of bad faith registration and use. See Nutricia International BV v. Eric Starling,WIPO Case No. D2015-0773. Since the Respondent misspelled the Disputed Domain Name to misdirect users from the Complainant’s website to the Respondent’s website by capitalizing on a potential typing mistake, such conduct is per se evidence of bad faith. See ESPN, Inc. v. XC2,WIPO Case No. D2005-0444 (“It is well-settled that the practice of typosquatting, of itself, is evidence of the bad faith registration of a domain name.”). Finally, the Disputed Domain Name was registered after the Complainant first began using its TOURCOM Mark worldwide, and specifically in India. The Panel finds it likely that the Respondent had the Complainant’s TOURCOM Mark in mind when registering the Disputed Domain Name, demonstrating bad faith. 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 Lynda M. Braun 1 These trademarks are sometimes called composite marks, i.e., a combination of a word mark and a design mark.
Sole Panelist
Date: May 26, 2021
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