WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Last Minute Network Limited v. Web Domain Names
Case No. D2007-1161
1. The Parties
Complainant is Last Minute Network Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by Bird & Bird Solicitors, London, United Kingdom of Great Britain and Northern Ireland.
Respondent is Web Domain Names, of Shanghai, China.
2. The Domain Name and Registrar
The disputed domain name <lastminnute.com> (the “Domain Name”) is registered with Moniker Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 3, 2007. On August 7, 2007, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On August 7, 2007, Moniker Online Services, LLC transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 15, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 4, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 7, 2007.
The Center appointed David H. Bernstein as the sole panelist in this matter on September 13, 2007. 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
Complainant, a company incorporated under the laws of England and Wales, owns two trademark registrations in the United Kingdom, including LASTMINUTE.COM (Trademark No. UK 2359399; filed February 25, 2000; registered October 8, 2004); and LASTMINUTE.COM (and design) (Trademark No. UK 2314058; filed February 24, 2002; registered April 16, 2004) (the “Trademarks”). Complainant registered the domain name <lastminute.com> on September 2, 1998. Since October 1998, Complainant has used the <lastminute.com> domain name to offer travel and other leisure-related services in the United Kingdom and in other countries.
Respondent registered the domain name <lastminnute.com> on November 3, 2002, more than four years after Complainant’s first use of the <lastminute.com> domain name. Respondent is using the Domain Name for a landing page that includes advertisements for third party websites offering services similar or identical to those offered by Complainant. Among the advertisement links available on Respondent’s website are those for “www.expedia.co.uk”, “www.firstchoise.co.uk” and “www.latedeals.co.uk”, all of which compete with Complainant to provide travel-related services.
5. Parties’ Contentions
Complainant states that it uses the Trademarks and the <lastminute.com> domain name in relation to a number of services including travel agency services, reservation services for travel, reservation services for concert and theater tickets, the provision of information relating to entertainment, reservation services for accommodation and restaurants and the provision of access to on-line information. Complainant alleges that it has accumulated goodwill and reputation in its Trademarks and domain name as a result of, inter alia, advertising through links from other online services. Furthermore, Complainant states that its website has enjoyed extensive radio and television coverage since 1998. Complainant alleges that, as a result of the reputation and goodwill associated with Complainant’s Trademarks and domain name, a UK High Court interim injunction was granted on December 17, 1999 against eleven defendants who had used the words “last minute” or “lastminute.com” in corporate or trading names.
Complainant alleges that the Domain Name is identical or confusingly similar to its Trademarks. Complainant asserts that the Domain Name is an intentional misspelling of its Trademarks. Complainant also asserts that the Domain Name is visually similar to its Trademarks and domain name. Complainant argues that the addition of another “n” in the term “lastminute” is best viewed as a misspelling of Complainant’s Trademark. Complainant states that the Domain Name is not different enough from its domain name to prevent confusion among Internet users. Complainant also alleges that the Disputed Domain name is phonetically identical to its own Trademarks and domain name.
Complainant further alleges that Respondent has no rights or legitimate interests in respect of the domain name. Complainant states that, to its knowledge, the Respondent is not currently and has not in the past used the Domain Name in connection with a bona fide offering of goods or services. Complainant alleges that Respondent is using the goodwill that Complainant has accumulated to attract Internet users to its website for the purpose of diverting them to Complainant’s competitors. The Respondent is accomplishing this by using the Domain Name which contains advertising links to other websites that belong to Complainant’s competitors and that offer similar or identical services to the services that Complainant offers. Complainant also states that Respondent is not commonly known by the Domain Name and is not, to Complainant’s knowledge, making a legitimate noncommercial or fair use of the Domain Name.
Finally, the Complainant alleges that the Respondent has registered and is using the Domain Name in bad faith for three reasons. First, Complainant states that its Trademarks have accumulated significant reputation. Second, Complainant alleges that the fact that the Domain Name advertises services that are identical to Complainant’s services is indicative of Respondent’s bad faith. Third, Complainant argues that the fact that the Domain Name was registered four years after first use of Complainant’s Trademarks supports its argument that Respondent’s purpose of registering and using the Domain Name was to divert Internet traffic away from Complainant for the purpose of commercial gain by creating a likelihood of confusion with Complainant’s Trademarks and domain name. Complainant also alleges that Respondent has engaged in typo-piracy and is attempting to confuse Complainant’s potential customers. Additionally, Complainant argues that the fact that Respondent has previously been found by other WIPO panels to have registered and used domain names in bad faith supports Complainant’s argument that Respondent registered and is using the Domain Name in bad faith in this case.
Although the Complaint was properly notified to Respondent, as required by the Rules, the Respondent did not file a Response. In the absence of a Response, it is appropriate to accept as true all factual allegations of the Complaint. See, e.g., Ticketmaster Corp. v. Bill Hicks, WIPO Case No. D2004-0400; Elan Pharmaceuticals, Inc. v. Randy Haag, WIPO Case No. D2001-0755.
6. Discussion and Findings
The burden that Complainant must meet under paragraph 4(a) of the Policy is to prove:
(i) that the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights,
(ii) that Respondent has no rights or legitimate interests with respect to the Domain Name, and
(iii) that the Domain Name has been registered and is being used in bad faith.
For the reasons discussed below, the Panel concludes that Complainant has satisfied its burden of proving all three of these factors by a preponderance of the evidence. See, The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006-0340 (acknowledging consensus on use of preponderance of the evidence standard).
A. Identical or Confusingly Similar
Complainant filed its Trademarks with the UK Intellectual Property Office in 2000 and has trademark rights in the mark LASTMINUTE.COM. See, Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Decision Overview”), at §1.1 (“If the complainant owns a registered trademark then it satisfies the threshold requirement of having trademark rights. The location of the registered trademark and the goods and/or services it is registered for are irrelevant when finding rights in a mark.”).1 The only remaining question, then, is whether the Domain Name is identical or confusingly similar to Complainant’s Trademark.
The Panel finds that Domain Name is confusingly similar to Complainant’s Trademark because Respondent has engaged in “typo-squatting,” or the inclusion of an intentional typographical error in the Domain Name. See, e.g., Advance Magazine Publishers Inc. v. Buy This Domain, WIPO Case No. D2002-0803; Ticketmaster Corp., infra (finding confusingly similar domain names containing typographical errors); Oxygen Media, LLC v. Primary Source, WIPO Case No. D2000-0362 (<0xygen.com>, spelled with a zero rather than the letter “o” is confusingly similar to OXYGEN trademark). The additional “n” in the Domain Name does not change the fact that the Domain Name looks and reads like Complainant’s LASTMINUTE.COM trademark. The Panel thus finds that the Domain Name is confusingly similar to Complainant’s Trademark.
B. Rights or Legitimate Interests
Even in the absence of a Response, the Panel has reviewed the record and the website to which the Domain Name resolves and finds that there is no indication of any legitimate interest by Respondent in the Domain Name. Respondent registered the Domain Name approximately four years after Complainant began offering travel and leisure related services on its website and offers a landing page that advertises competitive services. It thus appears that Respondent is seeking to confuse Internet users so that those searching for Complainant could mistakenly reach Respondent’s website and be diverted to the websites of Complainant’s competitors. This is not a legitimate use under the Policy, nor is it a bona fide offering of goods or services. The Knot, Inc., infra (landing page is not a legitimate interest).
C. Registered and Used in Bad Faith
The same facts that support the finding that Respondent lacks rights or legitimate interest in the Domain Name also support the conclusion that Respondent is using the Domain Name in bad faith. These facts show that Respondent has intentionally sought to attract Internet users to its website by creating a likelihood of confusion with Complainant’s Trademarks and domain name for commercial gain. Only one letter distinguishes the Domain Name from Complainant’s Trademark. The clear inference is that Respondent is specifically targeting Complainant’s Trademarks and domain name and attempting to divert Internet users searching for Complainant to Respondent’s website. Respondent is presumably profiting from this conduct in the form of click-through revenues. These facts all support a finding of bad faith registration and use under Paragraph 4(b)(iv) of the Policy. The Knot, Inc., infra; Airbus Deutschland Gmbh v. DOMAIN-NAME-4-SALE, WIPO Case No. D2005-0092.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <lastminnute.com> be transferred to Complainant.
David H. Bernstein
Dated: September 29, 2007
1 Although the WIPO Decision Overview is not binding precedent, it embodies a consensus of positions set forth in the opinions of several WIPO panelists during the first five years of the administration of the UDRP. See, Fresh Intellectual Properties, Inc. v. 800Network.com, Inc., WIPO Case No. D2005-0061. It is prudent for panelists to follow such a consensus in order to promote consistency among UDRP decisions. See, Howard Jarvis Taxpayers Association v. Paul McCauley, WIPO Case No. D2004-0014.