The Complainant is Skyscanner Limited, United Kingdom, represented by Lewis Silkin LLP, France.
The Respondent is James Newman, India
2. The disputed domain name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 10, 2021. On December 13, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 14, 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 December 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 amendment to the Complaint on December 21, 2021.
The Center verified that the Complaint together with the amendment to Complaint satisfied the formal requirements of the Uniform disputed domain name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform disputed domain name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform disputed 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 December 29, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 18, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 24, 2022.
The Center appointed William P. Knight as the sole panelist in this matter on February 3, 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 provides travel information and arrangement services from its website located at “www.skyscanner.net” as well as local websites in many countries. The Complainant claims that the “www.skyscanner.net” website attracts 100 million visits per month.
The Complainant owns a number of registered trademarks incorporating the term SKYSCANNER in various jurisdictions including the United States of America (Registration No. 4420284, registered on October 22, 2013) and India (Registration No. 1890840, obtained on December 2, 2009), as well as International Trademark Registration No. 1030086, registered on December 1, 2009, in respect of services including, amongst other things, advertising services provided via the Internet, travel information and arrangement services, and the operation of a search engine relating to travel.
The disputed domain name was registered on November 10, 2021.
There is no evidence that the disputed domain name has ever been used to host a website. It presently is used as a “parking page”, a page offering only pay-per-click (“PPC”) links by the Registrar which direct internet users to third party competitors of the Complainant.
5. Parties’ Contentions A. ComplainantThe Complainant submits that the disputed domain name is confusingly similar to its well-known and distinctive trademark SKYSCANNER. The Complainant observes that the sole difference between the Complainant’s trademark and the disputed domain name is the addition of the letter “s” to the Complainant’s trademark which does nothing to distinguish the disputed domain name from the Complainant’s trademark.
The Complainant further asserts that the Respondent does not own any registered rights in any trademarks which comprise the dominant part of the disputed domain name. The Complainant has not given permission to the Respondent to use the Complainant’s trademarks in the disputed domain name or otherwise. The disputed domain name does not point to an active website but the Respondent has allowed it to be used as a parking page by the Registrar so that it now redirects users to competitors of the Complainant. However, the Complainant provides evidence provided by the website “www.nslookup.io” that shows a record of active email exchanges associated with the disputed domain name. From this, the Complainant surmises that the Respondent may be engaged in misleading consumers to believe the communications originate with the Complainant.
The Complainant argues that the disputed domain name was registered at a time when the Complainant’s global reputation was well established and the Respondent must have been aware of that reputation. This points to registration in bad faith. The Complainant says that the evidence presented by it leads to a reasonable conclusion that the Respondent has used an email address connected to the disputed domain name in a manner falsely indicating a connection between the Respondent and the Complainant and that this shows use in bad faith. In addition, if it is assumed that the disputed domain name was registered for the purpose of using it in some manner, there is no lawful use to which the disputed domain name could be so used, and this should be regarded as registration and use in bad faith, as required to be established by the Complainant under the Policy.
The Complainant requests that the disputed domain name be transferred to it.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsParagraph 4(a) of the Policy provides that, to obtain relief under the Policy in respect of the disputed domain name, the Complainant must establish the following three elements paragraph 4.2):
(i) the disputed domain name is identical or confusingly similar to a trade mark 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.
Paragraph 15(a) of the Rules provides that the Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. Furthermore, paragraphs 10(b) and 10(d) of the Rules provide that the Panel shall ensure that the parties are treated with equality and shall determine the admissibility, relevance, materiality, and weight of the evidence.
The standard of proof required of the Complainant is “the balance of probabilities”; see section 4.2 of WIPO Overview of WIPO Panel Views and Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”),
In addition, paragraph 14(b) of the Rules provides that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under, the Rules, the Panel shall draw such inferences therefrom as it considers appropriate.
The Panel notes that the Respondent did not reply to the Complainant’ contentions. The Respondent’s failure to respond, however, does not automatically result in a decision in favour of the Complainant, although the Panel is entitled to draw appropriate inferences therefrom, in accordance with paragraph 14(b) of the Rules; see section 4.3 of WIPO Overview 3.0.
Taking these provisions into consideration, the Panel finds as follows:
A. Identical or Confusingly SimilarFor the reasons argued by the Complainant, the Panel accepts that the Complainant has established relevant trademark rights in SKYSCANNER and that the disputed domain name is confusingly similar to the Complainant’s trademark. The Complainant’s trademark is clearly recognizable in the disputed domain name, the addition of an “s” being insufficient to avoid a finding of confusing similarity.
The Panel accordingly finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsParagraph 4(a)(ii) of the Policy requires the Complainant to demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name. Paragraph 4(c) of the Policy sets out a list of non-exhaustive circumstances that may suggest that a respondent has rights or legitimate interests in a domain name, including but not limited to:
“(i) before any notice to you of the dispute, [the respondent’s] 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) [the respondent] (as an individual, business, or other organization) [has] been commonly known by the domain name, even if [the respondent has] acquired no trademark or service mark rights; or
(iii) [the respondent is] 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.”
A complainant is required to make a prima facie case that the respondent does not have rights or legitimate interests in the disputed domain name. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name in question. If, however, the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP. See section 2.1 of the WIPO Overview 3.0.
The Complainant has asserted that the Respondent does not own any registered rights in any trademarks which comprise the dominant part of the disputed domain name and that the Complainant has not given permission to the Respondent to use the Complainant’s trademark in the disputed domain name or otherwise. The Respondent was notified of the Complaint and had the opportunity to contradict these assertions of the Complainant, including by making out any of the circumstances described in Paragraph 4(c) of the Policy, but did not do so.
That the Respondent has permitted the Registrar to use the disputed domain name as a parking page does not represent a bona fide offering, noting the “pay-per-click” links on the parking page compete with or capitalize on the reputation and goodwill of the Complainant’s trademark or otherwise mislead Internet users.
The Panel therefore concludes that the Complainant has made a sufficient prima facie case of the Respondent’s lack of rights or legitimate interests in the disputed domain name. As a result of its default, the Respondent has failed to rebut such a showing.
The Complainants have therefore satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithUnder paragraph 4(a)(iii) of the Policy, the Complainant must establish that the disputed domain name has been registered and is being used in bad faith.
At the outset, it must be noted that the Complainant’s trademark, which is very distinctive, has a such global reach that the Respondent could not credibly claim to have been unaware of the mark. Also, the Panel notes the disputed domain name only differs from the Complainant’s trademark by the addition of a single letter “s”, creating the appearance of a plural version of the Complainant’s trademark. In these circumstances, the Panel has no hesitation in concluding that, at the time of registration of the disputed domain name, the Respondent knew, or should have known, that its registration would be identical or confusingly similar to the Complainant’s mark. See section 3.2.2 of the WIPO Overview 3.0. This justifies a finding of registration in bad faith under paragraph 4(a)(iii) of the Policy.
As for use in bad faith, the Panel is guided by sections 3.3 and 3.5 of the WIPO Overview 3.0. These indicate that, where there is no use of a disputed domain name or use only in the sense of permitting the Registrar to park PPC links, the totality of the circumstances in each case must be considered in order to determine whether there is the required use in bad faith. In this case, the notoriety of the Complainant’s trademark and its distinctiveness along with the implausibility of any good faith use to which the disputed domain name may be put are compelling considerations. In addition, the Respondent must accept some responsibility for the parking page using the disputed domain name, automatically placed by the Registrar or not, which includes PPC links to the Complainant’s competitors. There Panel also notes the Respondent’s failure to respond to the Complaint or provide any evidence of good faith use. These factors lead to a conclusion that the Respondent is using the disputed domain name in bad faith as required by paragraph 4(a)(iii) of the Policy.
Therefore, the Panel is satisfied that, on the balance of probabilities, the Respondent’s registration and use of the disputed domain name qualifies as bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
The Complainants have therefore satisfied paragraph 4(a)(iii) of the Policy.
7. DecisionFor all 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
William P. Knight
Sole Panelist
Date: February 17, 2022