WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Last Minute Network Limited v. Fraser Hunter
Case No. D2013-0194
1. The Parties
The Complainant is Last Minute Network Limited of London, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by J. A. Kemp & Co, United Kingdom.
The Respondent is Fraser Hunter of Dumfries, United Kingdom.
2. The Domain Name and Registrar
The disputed domain name <lastminutecomparison.com> (the "Domain Name") is registered with 1&1 Internet AG (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on January 28, 2013. On January 28, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 29, 2013, 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 January 31, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was February 20, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 21, 2013.
The Center appointed Ian Lowe as the sole panelist in this matter on March 4, 2013. 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
The Complainant is a UK company incorporated in April 1998. It is the operator of the website at “www.lastminute.com” and country specific websites such as “www.lastminute.de”, “www.lastminute.ie” and “www.us.lastminute.com”. From its websites, the Complainant uses its trademarks primarily in relation to the provision of travel arrangement services and for the reservation and booking of restaurants and other leisure activities. It has operated using the “www.lastminute.com” website since October 1998.
The Complainant is the registered proprietor of a number of UK and Community trademark registrations comprising the trademarks LASTMINUTE and LASTMINUTE.COM, including the UK registrations No. 2359399 for LASTMINUTE.COM registered as of February 25, 2000 and No. 2481352 for LASTMINUTE registered as of February 29, 2008; and CTM registrations No. 001064195 for LASTMINUTE registered as of February 3, 1999 and No. 001527811 for LASTMINUTE.COM registered as of February 25, 2000.
The Domain Name was registered on December 22, 2007. At the date of the filing of the Complaint it resolved to a website offering hotel bookings. On the Home page, the Complainant was listed under the heading "Our Suppliers". The website also uses the magenta colour used by the Complainant which has been a prominent feature of the Complainant's website and business identity since it launched in October 1998. The Complainant's UK trademark registrations No. 2314058 and No. 2481359 for LASTMINUTE.COM both include a magenta colour version of the trademark.
The Respondent did not respond to a cease and desist letter sent to the Respondent on behalf of the Complainant.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to its LASTMINUTE and LASTMINUTE.COM trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Leaving aside the “.com” suffix, that may be ignored when assessing identity and confusing similarity for the purposes of paragraph 4(a)(i) of the Policy, the Domain Name comprises the entirety of the Complainant's LASTMINUTE trademark together with the non-distinctive term "comparison". As the Complainant points out, the word "comparison" begins with the letters "com" so that the Domain Name also begins with the entirety of the Complainant's trademark LASTMINUTE.COM. Since, by its nature, the Complainant's website makes comparisons between the cost of the travel and other services it offers, in the Panel's view the addition of the term "comparison" increases the confusing similarity between the Domain Name and the Complainant's LASTMINUTE trademark.
Accordingly, the Panel finds that the Domain Name is confusingly similar to the trademarks LASTMINUTE and LASTMINUTE.COM in which the Complainant has rights.
B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint. In view of the notoriety of the Complainant’s LASTMINUTE trademark, the nature of the Domain Name and its use for a website offering apparently similar services to the Complainant, the Panel finds that the Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in the Domain Name. In the absence of a Response, there is no rebuttal of this strong prima facie case. The Panel cannot conceive of any such rights or legitimate interests.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
The Respondent is offering hotel bookings from his website at the Domain Name. These services are similar to the services offered by the Complainant. Furthermore, the Complainant is listed on the Home Page under the heading "Our Suppliers" falsely suggesting a connection between the Complainant and the Respondent and/or that the Complainant endorses the Respondent's activities. The Respondent is also using the distinctive magenta colour used by the Complainant on its website.
In the Panel's view, the obvious conclusion is that the Respondent's website is intended to mislead Internet users into believing that the website is the Complainant's or that it is associated with or endorsed by the Complainant, with a view to commercial gain by the Respondent. The Panel considers that this is clearly abusive bad faith use for the purposes of the Policy and that the Respondent must have had the Complainant in mind when it registered the Domain Name.
Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of 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 Domain Name <lastminutecomparison.com> be transferred to the Complainant.
Date: March 15, 2013