WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Onetwotrip Ltd v. Hugo Balazs
Case No. D2015-0255
1. The Parties
The Complainant is Onetwotrip Ltd of Tortola, British Virgin Islands, Overseas Territory of the, United Kingdom, internally represented by Ivan Loginov, Russian Federation.
The Respondent is Hugo Balazs of Kyiv, Ukraine.
2. The Domain Name and Registrar
The disputed domain name <onetwotrick.com> is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 18, 2015. On February 18, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 18, 2015, the Registrar transmitted by email to the Center its verification response confirming that:
(a) it is the Registrar for the disputed domain name;
(b) the disputed domain name is registered in the name of the Respondent and the contact details are correct;
(c) the Respondent registered the disputed domain name on November 14, 2014;
(d) the language of the registration agreement is English;
(e) the disputed domain name was registered subject to the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), and the UDRP applies to the disputed domain name.
The Center verified that the Complaint satisfied the formal requirements of the Policy, the Rules for the Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for the Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 26, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 18, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 19, 2015.
The Center appointed Warwick A. Rothnie as the sole panelist in this matter on April 2, 2015. 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.
On March 18, 2015, the Complainant sent an email to the Center with a procedural inquiry as it wished to submit notarized translations of a website in support of the Complaint and those documents had not yet been received. On April 1, 2015, the Complainant submitted a supplemental filing in which it included copies of printouts from the website which the Complainant says the disputed domain name resolved to, translations of those printouts and attestation by a notary public.
4. Factual Background
According to the Complaint, the Complainant was incorporated in February 2011 and has, since that date, been providing an online service selling airline tickets from a website which the domain name <onetwotrip.com> resolves to.
The Complainant has registered two International Trademarks for a device in the form of a suitcase bearing the words ONE TWO TRIP! in large letters:
(a) International Trademark No. 1152035 for a range of services in International Classes 39 and 43, registered on February 12, 2013; and
(b) International Trademark No. 1163210 for a range of services in International Classes 35, 36, and 42, registered on May 24, 2013.
Until the Complaint was filed, the disputed domain name resolved to a website which contained written content claiming to expose illegal conduct by the Complainant or by individuals involved with the Complainant. The Complainant says this content is highly defamatory. After the Complaint was filed, the website apparently ceased operating.
5. Discussion and Findings
No response has been filed. The Complaint has been served, however, on the physical and electronic coordinates specified in the WhoIs record (and confirmed as correct by the Registrar) in accordance with paragraph 2(a) of the Rules. Accordingly, the Panel finds that the Complaint has been properly served on the Respondent.
When a respondent has defaulted, paragraph 14(a) of the Rules requires the Panel to proceed to a decision on the Complaint in the absence of exceptional circumstances. Accordingly, paragraph 15(a) of the Rules requires the Panel to decide the dispute on the basis of the statements and documents that have been submitted and any rules and principles of law deemed applicable.
Before addressing the substantive requirements under the Policy, the Panel deals with the Complainant's request to file a supplemental filing.
Apart from documents requested by the Panel pursuant to paragraph 12 of the Rules, neither the Policy nor the Rules expressly provide for supplemental filings. Their admissibility is therefore in the discretion of the Panel bearing in mind the requirements under paragraph 10 of the Rules to ensure that the proceeding is conducted with due expedition and both parties are treated equally, with each party being given a fair opportunity to present its case.
Where unsolicited supplemental filings are admitted, it is usually because the material corrects some error or addresses something raised in a Response which could not reasonably have been anticipated or which was not otherwise appropriate to deal with until a respondent's position on a particular point was clear. In the present case, the supplemental filing contains what purports to be translation from Russian to English of the written content on the website which the disputed domain name resolved to before the Complaint was filed. The reason given for the delay in submitting the material is the cessation of the website and the need to get the materials and translations notarized. In these circumstances, the Panel will admit the supplemental filing into the record.
A. Identical or Confusingly Similar
The first element that the Complainant must establish is that the disputed domain name is identical with, or confusingly similar to, the Complainant's trademark rights.
There are two parts to this inquiry: the Complainant must demonstrate that it has rights in a trademark and, if so, the disputed domain name must be shown to be identical or confusingly similar to the trademark.
The Complainant has proven ownership of the two International Trademarks referred to in section 4 above.
The Complainant contends that the disputed domain name is confusingly similar to those trademarks because it differs from the trademarks by the substitution of two letters, "ck", for the single letter "p" in the Complainant's trademarks – (disregarding the ".com" component of the disputed domain name as a functional aspect of the domain name system: Telstra Corporation Limited v. Ozurls, WIPO Case No. D2001‑0046, Ticketmaster Corporation v. DiscoverNet, Inc., WIPO Case No. D2001-0252).
The fact that two letters have been used instead of the letter "p" makes the case somewhat different to the typical typosquatting case. It seems unlikely that someone would mistakenly type in both a "c" and a "k" for the "p".
Apart from the ".com" component, the disputed domain name consists of three simple English words. There is a degree of aural similarity to the three simple English words in the Complainant's trademark. However, they do not convey the same idea. The expression "one, two" is a common English usage, so the correspondence of that element would not necessarily by itself suggest an association between the disputed domain name and the Complainant's trademark.
There is some prospect that some notional person familiar with the Complainant's trademarks would be caused to wonder whether there was some association between them and the disputed domain name. That is plainly intended by the Respondent, having regard to the content of its website. Ordinarily, one does not have regard to the content of the Respondent's website to make this assessment (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 1.2). Panels have accepted, however, that it is permissible to have regard to the website in limited cases. The light the website throws on the Respondent's intentions is significant. In the circumstances of this case, therefore, the Panel considers that that evident intention is sufficient to push the disputed domain name over the threshold of confusing similarity.
Accordingly, the Panel finds that the Complainant has established that the disputed domain name is confusingly similar to the Complainant's trademarks and the requirement under the first limb of the Policy is satisfied.
B. Rights or Legitimate Interests
The second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy provides that the following circumstances can be situations in which the Respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to [the Respondent] of the dispute, [the Respondent's] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] 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 [disputed] 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 [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
These are illustrative only and are not an exhaustive listing of the situations in which a respondent can show rights or legitimate interests in a domain name.
The onus of proving this requirement, like each element, falls on the Complainant. Panels have recognized the difficulties inherent in proving a negative, however, especially in circumstances where much of the relevant information is in, or likely to be in, the possession of the respondent. Accordingly, it is usually sufficient for a complainant to raise a prima facie case against the respondent under this head and an evidential burden will shift to the respondent to rebut that prima facie case. See e.g., paragraph 2.1 of the WIPO Overview 2.0.
The Complainant states that it has not authorised the Respondent to use the disputed domain name. Nor is the Respondent affiliated with it. The disputed domain name is plainly not derived from the Respondent's name. From the available record, the Respondent does not appear to hold any trademarks for the disputed domain name. The Complainant says that the material on the website which the disputed domain name resolved to was false and highly defamatory. It says therefore that the Respondent can have no rights or legitimate interests in the disputed domain name.
The Panel is not in a position to assess whether or not the material on the website was true or false. Nor has the Panel been provided with any material which would enable it to form a view about such matters. The Panel notes, however, that the material that was on the website, if true, potentially deals with quite serious matters. Correspondingly, if not true, the material is potentially very damaging to the Complainant's reputation.
Such material, if believed to be true by the Respondent has the potential to qualify as a legitimate noncommercial or fair use of the disputed domain name along the lines of protest or "gripe" sites. See e.g., MLP Finanzdienstleistungen AG v. WhoisGuard Protected WIPO Case No. D2008-0987.
The Respondent, however, has not sought to justify his registration and use of the disputed domain name on this basis. He has not sought to defend his position at all. Moreover, he appears to have taken the website down as soon as the Complaint was filed. There could be many explanations for this. It is not the typical response of someone who is genuinely operating a protest or "gripe" site. The Panel does not have the benefit of the Respondent's explanation for this conduct.
In these circumstances, the Panel considers it is not open to find that the disputed domain name is being used as a form of protest or "gripe" site making a fair use of the disputed domain name. Therefore, the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not sought to rebut that prima facie case. Accordingly, the Panel finds the Complainant has established the second requirement under the Policy also.
C. Registered and Used in Bad Faith
Under the third requirement of the Policy, the Complainant must establish that the disputed domain name has been both registered and used in bad faith by the Respondent.
Generally speaking, a finding that a domain name has been registered and is being used in bad faith requires an inference to be drawn that the respondent in question has registered and is using the disputed domain name to take advantage of its significance as a trademark owned by (usually) the complainant.
It is plain from the content of the website that the disputed domain name resolved to that the Respondent was well and truly aware of the Complainant and its trademarks when registering the disputed domain name. The use the Respondent made of the disputed domain name, setting up a website with what the Complainant claims is highly defamatory content, invites consideration of the Respondent's motives: see e.g., Vector Limited v. Vince and Jane Siemer WIPO Case No. D2008-0925.
The Respondent has been found on the very limited record in this case not to have rights or legitimate interests in the disputed domain name. He has been using the disputed domain name apparently to defame the Complainant and its officers. The Respondent has not been prepared to justify or defend that use. In those circumstances, the disputed domain name is being used in bad faith. Bearing in mind the short time between registration of the disputed domain name and its use, the Panel infers that the disputed domain name was registered for the purpose that it was subsequently used for. That is, the use of the disputed domain name shows the purpose of its registration and colours it. Therefore, the Panel concludes that the disputed domain name was registered in bad faith as well.
Accordingly, the Complainant has made out the third requirement under the Policy.
For 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, <onetwotrick.com>, be transferred to the Complainant.
Warwick A. Rothnie
Date: April 6, 2015