The Complainant is WK Travel, Inc., United States of America (“United States”), represented by Mitchell Silberberg & Knupp, LLP, United States.
The Respondent is Hildegard Gruener, Austria.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 16, 2021. On October 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 19, 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 the Complainant on October 20, 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 26, 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 November 2, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 22, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 25, 2021.
The Center appointed Dawn Osborne as the sole panelist in this matter on December 9, 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 the owner of the trade mark ONETRAVEL, registered, inter alia, in the United States as trade mark registration number 4545969 for travel services, registered on June 10, 2014 with a first use in commerce recorded as 1998.
The Domain Name was registered on June 20, 2015 and has been used for a web site offering competing travel services under the Complainant’s mark and logo, used as a masthead such that said web site appears to be an official site of the Complainant when it is not.
5. Parties’ Contentions A. ComplainantThe Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the trade mark ONETRAVEL, registered, inter alia, in the United States as trade mark registration number 4545969 for travel services, registered on June 10, 2014 with a first use in commerce recorded as 1998.
The Domain Name, registered in 2015, is confusingly similar to the Complainant’s trade mark containing it in its entirety and adding the term “-com” and the generic Top Level Domain (“gTLD”) “.com”, neither of which prevents a finding of confusing similarity between the Domain Name and the Complainant’s mark.
The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it, and is not authorised by the Complainant to use its trade mark in any way.
The Respondent has been using the Domain Name to offer competing travel services using the mark and logo of the Complainant. This is not a bona fide offering of goods or services or legitimate noncommercial or fair use. It is registration and use in bad faith, impersonating the Complainant, taking advantage of its goodwill, disrupting its business, and diverting and causing confusion amongst Internet users, for commercial gain.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarThe Domain Name consists of the Complainant’s ONETRAVEL mark (registered, inter alia, in the United States for travel services since 2014), the term “com”, a hyphen, and the gTLD “.com”.
Previous UDRP panels have found that the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element as long as the relevant mark is recognisable within the disputed domain name. Here, the Panel finds that the addition of the term “com”, a hyphen, and the gTLD “.com” in the Domain Name does not prevent a finding of confusing similarity between the Domain Name and the Complainant’s mark, which is still recognisable in the Domain Name.
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
B. Rights or Legitimate InterestsThe Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence that the Respondent is, in fact, commonly known by the Domain Name.
The web site attached to the Domain Name uses the Complainant’s mark and its logo to offer competing services. It does not make it clear that there is no commercial connection between the site attached to the Domain Name and the Complainant. The web site appears official when it is not. The Panel finds this use does not amount to a bona fide offering of goods and services or a legitimate noncommercial or fair use. The Respondent has not answered this Complaint or given any explanation.
As such, the Panel finds that the Complainant has put forward a prima facie case that the Respondent does not have any rights or legitimate interests in the Domain Name, which has not been rebutted by the Respondent, and accordingly that the Complainant has satisfied the second limb of the Policy.
C Registered and Used in Bad FaithThe use made of the Domain Name in relation to the Respondent’s site is confusing to Internet users who are trying to find the Complainant’s web site and services by purporting to offer competing travel services using the Complainant’s mark and logo and giving the impression that the site attached to the Domain Name is an official site of the Complainant. The use of the Complainant’s logo by the Respondent shows the Respondent had actual knowledge of the Complainant, its rights, business, and services.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to her web site by creating a likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation, or endorsement of the web site attached to the Domain Name. Furthermore, the services offered on the Domain Name are likely to disrupt the business of the Complainant.
As such, the Panel believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of 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 Domain Name
Dawn Osborne
Sole Panelist
Date: December 20, 2021