WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Momondo A/S v. Yu Chen
Case No. D2012-2227
1. The Parties
The Complainant is Momondo A/S of Copenhagen, Denmark, represented by Otello Law Firm, Denmark.
The Respondent is Yu Chen of Kunming, Yunnan, China.
2. The Domain Name and Registrar
The disputed domain name <momodo.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 November 13, 2012. On November 13, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 13, 2012, the Registrar transmitted by email to the Center its verification response confirming that the 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” 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 15, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was December 5, 2012. The Respondent filed a Response on November 24, 2012.
The Center appointed Angela Fox as the sole panelist in this matter on December 14, 2012. 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
According to the Complaint, the Complainant, a Danish company, was established in 1997. It operates an online search engine for travel-related services such as flights, hotels and car rental under the name and trademark MOMONDO. Its search engine can be found inter alia at “www.momondo.co.uk’’ and “www.momondo.dk’’.
The Complainant owns the following trademark registrations for the word mark MOMONDO:
- Community Trademark Registration No. 5944855 filed on May 16, 2007;
- Community Trademark Registration No. 10052843 filed on June 16, 2011;
- International Registration No. 1053763 extending to Albania, Australia, Bosnia and Herzegovina, Belarus, Switzerland, China, Japan, Republic of Korea, Republic of Moldova, Norway, Serbia, Russian Federation, Singapore, Ukraine and United States of America, registered on September 24, 2010; and
- United States Trademark Registration No. 79088296 filed on September 24, 2010.
Annexes to the Complaint were print-outs of these registrations from the official online databases. They cover a variety of services including advertising and travel-related services.
The Complainant also claims to own the domain name, <momondo.com>. A WhoIs print-out annexed to the Complaint shows that this domain name was registered on December 9, 2004, and that it stands in the name of SkyGate International A/S. The Complainant does not explain the relationship between SkyGate International A/S and the Complainant, but the address given in the WhoIs details for SkyGate International A/S is the same as the Complainant’s address as given in the Complaint.
The disputed domain name <momodo.com> was registered in the name of the Respondent on December 14, 2010. A print-out from the website made on October 30, 2012 was annexed to the Complaint, showing that the disputed domain name is in use to link to a pay-per-click holding page featuring links to a range of third-party flight-booking websites, including the Complainant’s website at “www.momondo.dk’’ and competing flight search engines, as well as at least one link to an airline website.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar both visually and phonetically to its registered trademark MOMONDO, differing by only one letter in the middle. The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name. In particular, the Complainant submits that the Respondent is not known by the disputed domain name, has not been authorized by the Complainant to use the MOMONDO trademark or anything similar to it, and has never made any use of the disputed domain name that is, in the Complainant’s view, bona fide use.
Finally, the Complainant argues that the disputed domain name was registered and is being used in bad faith. The Complainant states that it had already established a significant presence in the market by the time the disputed domain name was registered in October 2010, and submits that the disputed domain name is a deliberate misspelling of the MOMONDO trademark (“typosquatting”) that the Respondent is intentionally using in order to gain commercially through click-through revenue by attracting Internet users to its website by creating a a likelihood of confusion with the Complainant’s MOMONDO name and trademark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or of the third-party services advertised through it. The Complainant submits that MOMONDO is a well-known trademark globally and that the Respondent is taking unfair advantage of, and seeking to profit from and exploit, the Complainant’s goodwill and reputation.
The Respondent emailed the Center on November 24, 2012 stating the following:
“you honor, my reply for Case No. D2012-2227
1.momo means mother in most country, most people see momodo should know means is
Mother do (something).it’s a common words.
2.momondo is a TM,but momodo is not.
3.check the item momodo in alexa.com,there are lots of websites like momodo.it,it’s a shop site,momodo.de,it’s a personal website,momodo.co.uk,it’s forward to piano’s site
4.this company can not occupy the words momodo,just because they have the TM momondo.it’s obviously different
On November 26, 2012, the Center replied to the Respondent, with a copy to the Complainant’s representatives, noting that the due date for filing a Response was December 5, 2012 and asking for confirmation that the above communication was the Respondent’s complete response. No reply was received.
The Respondent’s email of November 24, 2012 does not comply with the formal requirements for a response as set out in the Rules, paragraph 2(h)(iii), in that it was not copied to the Complainant. Nor does it comply with the requirements in the Rules, paragraphs 5(b)(ii), (iii) and (viii), because it does not provide the name, postal and email addresses, telephone and fax numbers of the Respondent and of any authorized representative, specify a preferred method of communication, or provide the required certification that inter alia the information presented in the response is to the best of the Respondent’s knowledge complete and accurate, and that the response is not being presented for any improper purpose such as to harass.
While the failure to comply with the formal requirements of paragraphs 2(h)(iii), 5(b)(ii) and (iii) would not in the Panel’s view prevent an otherwise timely and compliant Response from being considered, the absence of the certification is more problematic. Without it there is no assurance by the Respondent that the information that it has provided is complete or accurate. If a Response is admitted which is not supported by the required paragraph 5(b)(viii) certification, the absence of any certification as to completeness and, in particular, good faith accuracy undermines, and may significantly undermine, the weight that should be accorded to it.
As noted by the panelist in The American Automobile Association, Inc. v. 555 Metro Airport Transportation Service LLC, WIPO Case No. D2011-0588 (concerning the domain name <aaametrocars.com>), “the certification is important in a proceeding under the Policy. These proceedings are already streamlined and are decided based on the submissions of the parties, with very limited opportunity for a panel to test the credibility of the parties making assertions. A respondent in proceedings under the Policy is required to certify various matters, including that ‘the information contained in this Response is to the best of the Respondent’s knowledge complete and accurate, that this Response is not being presented for any improper purpose…’ The lack of this basic certification of accuracy is significant; it leaves little room for a panel to confer credibility on anything a respondent has asserted. Consequently, and according to paragraphs 10 and 12 of the Rules, the Panel in the instant case has decided not to consider the untimely and uncertified Response, the Reply thereto by Complainant, and Respondent’s response to the Reply.”
In this case, the Response was timely, but the omission of the required certification substantially undermines its value. While the Panel has considered the Response, it is unable to accord it any weight in these proceedings in light of the absence of the required certification. Even if weight had been accorded, however, the Panel notes that the Response consists only of unsupported assertions as to the meaning of “momodo” and does not address the allegations raised in the Complaint.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the panel finds that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
All three elements must be present before a complainant can succeed in an administrative proceeding under the Policy.
A. Identical or Confusingly Similar
The Complainant has proved that it owns registered trademark rights in MOMONDO.
The disputed domain name is clearly similar to MOMONDO, differing only in the omission of the letter “n” and the addition of the non-distinctive domain name suffix “.com”. MOMONDO is an invented word which has no meaning in English, and “momodo” is a predictable misspelling by those remembering the Complainant’s trademark only imperfectly or by those typing it quickly into a browser bar. The disputed domain name is therefore inherently likely to attract Internet users looking for the Complainant’s site. Many Internet users encountering the disputed domain name may not notice the minor differences between the disputed domain name and the Complainant’s MOMONDO trademark, and may well assume that the linked website is that of, or is in some way related to, the Complainant, particularly given the presence of flight-related links.
The Respondent’s registration of the disputed domain name appears to constitute “typosquatting,” namely the registration of domain names that consist of common or predictable misspellings of third-party trademarks in order to attract Internet traffic intended for a complainant (see inter alia Wachovia Corporation v. American Consumers First, WIPO Case No. D2004-0150; Red Bull GmbH v. Grey Design, WIPO Case No. D2001-1035; Playboy Enterprises International Inc. v. SAND WebNames – For Sale, WIPO Case No. D2001-0094; and Telstra Corporation Ltd. v. Warren Bolton Consulting Pty. Ltd., WIPO Case No. D2000-1293).
As stated above, the Panel is not satisfied with the Respondent’s claim in the Response that “momodo” means “mother do [something]” in many countries.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered MOMONDO trademark.
B. Rights or Legitimate Interests
The burden of proving absence of a right or legitimate interest in a domain name falls on complainants, but panels have long recognised that the information needed to prove such a right or legitimate interest is normally in the possession of respondents.
In order to avoid requiring complainants to prove a negative, which will often be impossible, panels have typically accepted that once a complainant has established a prima facie case that a respondent lacks rights or legitimate interests, the respondent carries the burden of showing that he/she does indeed have such a right or interest (see, inter alia, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110). In this case, the Complainant has put forward a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. There is nothing on the record to indicate that the Respondent might enjoy such a right or legitimate interest. The claim in the Response that “momodo” means “mother do [something]” in many countries is a bare and unsubstantiated assertion.
In its Response the Respondent has not denied the Complainant’s assertion that it is using the disputed domain name to generate click-through income. The presence of a link to the Complainant’s website and links to other flight search engines on the Respondent’s website strongly suggests that the Respondent was aware of the Complainant and its existing business in the flight search engine field when it registered the disputed domain name, and that such knowledge probably prompted the registration with the aim of attracting traffic and therefore generating income based on misspellings or typographical errors by Internet users seeking the Complainant’s site. Such intentional use of the disputed domain name that is likely to be mistaken for the Complainant’s MOMONDO trademark in order to attract Internet users to a pay-per-click landing page offering links to competitors of the Complainant’s flights-related search engine does not, in the Panel’s view, give rise to a right or legitimate interest in the disputed domain name and is manifestly not a legitimate noncommercial or fair use.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Complaint states that the Complainant “was established in 1997” and that the MOMONDO trademark is “a well-known trademark globally”. However, the Complaint did not annex any materials relating to the Complainant’s business or the reputation of the MOMONDO mark, which the Panel found unhelpful in deciding this Complaint.
As the Complaint referred to the Complainant’s domain name <momondo.com>, the Panel accessed the linked website and was re-directed to the Complainant’s website at “www.momondo.co.uk’’. The “About Us” page on that website indicated that the site had been launched in September 2006 as a flight search engine which has since expanded to include hotels and car rental. There is no indication that such activities were ever carried out under a different name. Nominet’s WhoIs database indicates that the domain name <momondo.co.uk> was registered on July 9, 2005 and stands in the name of MarieLuise und Richard Kahn GmbH, with the same address as that given for the Complainant in the Complaint. On the balance of probabilities, therefore, it seems likely that the Complainant was in fact trading under “Momondo” online as a flight search engine from a date anterior to the registration of the disputed domain name on October 8, 2010.
Under paragraph 4(b)(iv) of the Policy, the Panel may find both registration and use in bad faith where there is evidence that by using the domain name, a 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 a 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 it.
In this case, there is evidence that the Respondent deliberately set out to derive pay-per-click revenue by creating a likelihood of confusion with the Complainant's MOMONDO trademark. The Respondent adopted a confusingly similar disputed domain name which is a common and predictable misspelling of the Complainant’s trademark and has used it to host pay-per-click links to third-party websites offering services that compete with those of the Complainant. Such conduct is inherently misleading and in the Panel’s view is prima facie evidence of bad faith.
The Respondent’s assertion that it was entitled to register the disputed domain name because “momodo” has the descriptive meaning “mother do [something]” in many countries rings hollow given the absence of evidential support and the presence of multiple links on the Respondent’s website to competitors of the Complainant. The facts strongly point to knowledge by the Respondent of the Complainant’s MOMONDO online travel search engine and to a deliberate attempt to lure in Internet traffic looking for the Complainant by creating a likelihood of confusion with the MOMONDO mark, for the Respondent’s commercial gain.
The Panel finds that the Respondent registered and has used the disputed domain name in bad faith.
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 <momodo.com> be transferred to the Complainant.
Date: January 8, 2013