The Complainant is Travelscape, LLC, United States of America (“United States”), represented by Kilpatrick Townsend & Stockton 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 November 1, 2021. On November 2, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 2, 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 November 9, 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 November 9, 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 23, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 13, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 12, 2022.
The Center appointed Nicholas Smith as the sole panelist in this matter on January 18, 2022. 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 and its predecessors in title have offered travel services since 1996, most commonly at the website “www.travelocity.com” (“Complainant’s Website”). The Complainant has promoted its services under the trade mark “travelocity” (the “TRAVELOCITY Mark”) continuously since 1996 and the Complainant’s Website has since October 2018 received an average of 2.7 million visits per month. It is presently the 7th most popular tourism and travel website in the United States.
The Complainant holds trade mark registrations in the United States for the TRAVELOCITY Mark, including Registration No. 2,466,132, registered on July 3, 2001 for services in classes 35, 38, 39 and 42.
The Domain Name was registered on April 19, 2017. The Domain Name resolves to a website (“Respondent’s Website”) that, under the TRAVELOCITY Mark, offers travel booking services, including flight, hotel and vacation booking services, in direct competition with the Complainant. Indeed the Respondent’s Website makes direct reference to the Complainant as it includes the wording “Travelocity.com is an American travel fare aggregator website and travel metasearch engine. The website is owned by a subsidiary of Expedia, Inc.”.
5. Parties’ Contentions A. ComplainantThe Complainant makes the following contentions:
(i) the Domain Name is identical or confusingly similar to the Complainant’s TRAVELOCITY Mark;
(ii) the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
The Complainant is the owner of the TRAVELOCITY Mark. It owns trade mark registrations for the TRAVELOCITY Mark in the United States. The Domain Name consists of the TRAVELOCITY Mark and the additional element “-com” which does nothing to detract from the identity of the central element of the Domain Name being the Complainant’s TRAVELOCITY Mark. The Domain Name is confusingly similar to the TRAVELOCITY Mark.
The Respondent has no rights or legitimate interests in the Domain Name. The Respondent is not affiliated with the Complainant in any way. The Complainant has not authorized the Respondent to use and register the TRAVELOCITY Mark or to seek the registration of any domain name incorporating the TRAVELOCITY Mark. The Respondent is using the Domain Name to operate a site through which the Respondent offers services under the TRAVELOCITY Mark in direct competition with the Complainant. This does not provide the Respondent with rights or legitimate interests.
The Domain Name was registered and is being used in bad faith. The Domain Name was registered with full knowledge of the TRAVELOCITY Mark. By using the Domain Name to resolve to a website that offers competing travel booking services, the Respondent is using the Domain Name to disrupt the Complainant’s business and divert Internet users searching for the Complainant to a competing website for commercial gain.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarTo prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark.
The Complainant is the owner of the TRAVELOCITY Mark, having registered the TRAVELOCITY Mark as a trade mark in the United States.
The Domain Name incorporates the TRAVELOCITY Mark in its entirety with the addition of the element “‑com”. The addition of a term to a complainant’s mark does not prevent a finding of confusing similarity; see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). See also The Bank of Nova Scotia v. Whois Protection, WIPO Case No. D2007‑0884; and Valero Energy Corporation, Valero Marketing and Supply Company v. Domain Name Proxy, LLC, Navigation Catalyst Systems, Inc., WIPO Case No. D2011‑1227.
The Panel finds that the Domain Name is confusingly similar to the Complainant’s TRAVELOCITY Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate InterestsTo succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
“Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you 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
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trade mark or service mark rights; or
(iii) you are making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.” (Policy, paragraph 4(c)).
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the TRAVELOCITY Mark or a mark similar to the TRAVELOCITY Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial use. The Respondent’s use of the Domain Name for a website offering travel booking services in direct competition with the services offered by the Complainant does not, on the face of it, amount to use for a bona fide offering of goods and services.
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had the opportunity to put on evidence of its rights or legitimate interests, including submissions as to why its conduct amounts to a right or legitimate interest in the Domain Name under the Policy. In the absence of such a Response, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithFor the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) the Respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location. (Policy, paragraph 4(b)).
The Panel finds that the Respondent must have been aware of the Complainant and its reputation in the TRAVELOCITY Mark at the time the Respondent registered the Domain Name. The Respondent’s Website offers competing travel services and makes direct reference to the Complainant. The Respondent does not provide, nor is it apparent to the Panel, any reason why the Domain Name was registered other than by reference to the Complainant. The registration of the Domain Name in awareness of the TRAVELOCITY Mark and in the absence of rights or legitimate interests amounts to registration in bad faith.
The Respondent’s Website purports to offer travel booking services in direct competition with the Complainant. Given that the Respondent has offered no plausible explanation for the registration of the Domain Name, the Panel finds that that the Respondent is using the Domain Name to intentionally attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the TRAVELOCITY Mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s Website. As such, the Panel finds that the Domain Name is being used in bad faith.
Accordingly, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith under paragraph 4(a)(iii) 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 disputed domain name
Nicholas Smith
Sole Panelist
Date: January 24, 2022