The Complainant is WK Travel, Inc., United States of America, represented by Mitchell, Silberberg & Knupp, LLP, United States of America.
The Respondent is Domains By Proxy, LLC, United States of America / Carlos Courtaux, United States of America.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 15, 2021. On October 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 19, 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 October 21, 2021 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 October 21, 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 October 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 16, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 18, 2021.
The Center appointed Evan D. Brown as the sole panelist in this matter on November 26, 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 BackgroundThe Complainant is in the business of providing travel-related services including airfare, temporary lodging, car rentals, and vacation packages. It owns the trademark ONETRAVEL, which it has registered in the United States (Reg. No. 4,545,969, registered on June 10, 2014).
According to the WhoIs records, the disputed domain name was registered on June 18, 2020. The Respondent has used the disputed domain name to operate a website providing services competitive to those of the Complainant, namely, information about deals on hotels in and flights to various destinations. The respondent did not reply to cease and desist communications the Complainant sent concerning the disputed domain name.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsTo succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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 Panel finds that all three of these elements have been met in this case.
A. Identical or Confusingly SimilarThis element requires the Panel to consider two issues: first, whether the Complainant has rights in a relevant mark; and, second, whether the disputed domain name is identical or confusingly similar to that mark. This element under the Policy functions primarily as a standing requirement. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. See Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen,WIPO Case No. D2014-0657. The Complainant has demonstrated its rights in the ONETRAVEL trademark by providing evidence of its trademark registration. The disputed domain name incorporates the ONETRAVEL mark in its entirety. This is sufficient for showing confusing similarity under the Policy. The Panel finds that the Complainant has established this first element under the Policy.
B. Rights or Legitimate InterestsThe Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes that showing, the burden of demonstrating rights or legitimate interests shifts to the Respondent.
On this point, the Complainant asserts, among other things, that the Respondent is not affiliated with the Complainant, nor has the Complainant ever authorized, licensed, or otherwise permitted the Respondent to use the ONETRAVEL mark in any way. Further, the Complainant asserts that the Respondent has not used the disputed domain name for any bona fide or legitimate business, but instead has used the disputed domain name to set up a website for services that are directly competitive with the Complainant’s services. The Complainant claims that the disputed domain name has been used to misdirect or “bait” internet users seeking to utilize or learn more about the Complainant’s travel-related services to the Respondent’s competing website.
The Panel finds that the Complainant has made the required prima facie showing. The Respondent has not presented evidence to overcome this prima facie showing. And nothing in the record otherwise tilts the balance in the Respondent’s favor. Accordingly, the Panel finds that the Complainant has established this second element under the Policy.
C. Registered and Used in Bad FaithThe Policy requires a complainant to establish that the disputed domain name was registered and is being used in bad faith. The Policy describes several non-exhaustive circumstances demonstrating a respondent’s bad faith registration and use. Under paragraph 4(b)(iv) of the Policy, a panel may find bad faith when a respondent “[uses] the domain name to intentionally attempt 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 a product or service on [the respondent’s] website or location”.
The Panel finds that the Respondent is using the disputed domain name in bad faith because its use of the disputed domain name is to intentionally attempt to divert, for commercial gain, Internet users to one or more competing websites in an effort to confuse and mislead consumers. Deutsche Lufthansa AG v. Domain Admin, Whois Privacy Corp / Ryan G Foo, PPA Media Services,WIPO Case No. D2015-2346; Net2phone Inc. v. Dynasty System Sdn Bhd,WIPO Case No. D2000-0679.
The lack of response by the Respondent to the cease-and-desist communication sent by the Complainant supports a finding of bad faith. Past UDRP panels have held that failure to respond to a cease-and-desist letter may be considered a factor in finding bad faith registration and use of a domain name. See Encyclopaedia Britannica, Inc. v. John Zuccarini and The Cupcake Patrol a/ka Country Walk a/k/a Cupcake Party,WIPO Case No. D2000-0330.
For these reasons, the Panel finds that the Complainant has established this third element under the Policy.
7. DecisionFor 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,
Evan D. Brown
Sole Panelist
Date: December 10, 2021