WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Momondo A/S v. Arsen Loryan
Case No. D2015-0235
1. The Parties
The Complainant is Momondo A/S, Copenhagen, Denmark, represented by Horten Law Firm, Denmark.
The Respondent is Arsen Loryan, Moscow, Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <momonddo.com> is registered with Registrar of Domain Names REG.RU LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 13, 2015. On February 13, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 16, 2015, 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, and confirming that the language of the registration agreement for the disputed domain name was Russian. Accordingly, the Center sent an email communication on February 18, 2015, concerning the Language of Proceedings in English and in Russian to both the Complainant, and the Respondent. On February 19, 2015, the Complainant sent a request for English to be the language of proceeding. The Respondent did not comment on the request of the Complainant for the language of the proceeding. On March 9, 2015 the Center invited the Complainant to correct a typographical error in the Complaint. On the same date, the Complainant corrected the error by submitting an amended Complaint to the Center.
The Center verified that the amended 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 in both Russian and English and the proceedings commenced on March 10, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 30, 2015. Three brief emails were received from Respondent on February 19, 2015 and March 9, 2015, but no formal Response was filed.
The Center appointed Assen Alexiev as the sole panelist in this matter on April 17, 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.
In respect of the language of the proceedings, the Panel notes the following. According to the information provided by the Registrar, the language of the registration agreement for the disputed domain name is Russian. Under paragraph 11 of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
The Complainant has submitted its Complaint in the English language, and has requested the proceeding to be held in English with the argument that it would be disproportionately burdensome to the Complainant if the proceedings are held in Russian, since external translation would be required. The Respondent has not taken any position on the issue of the language of the proceeding, although the Center has informed it that if it does not express any position on this issue, the Center will proceed on the basis that the Respondent has did not object to the Complainant’s request that English be the language of proceedings. Thus, the Respondent appears not to have an objection the proceeding to be held in English. The Center has sent all its communications to the Respondent in both English and Russian and has informed the Parties that it will accept a Response in either English or Russian.
In these circumstances, it appears to the Panel that using the English language in this proceeding will be fair and efficient and will not put either of the parties at a disadvantage. Therefore, in exercise of its powers under paragraph 11 of the Rules, the Panel decides that the language of this administrative proceeding be English. At the same time, the Panel will review and take into account the relevant evidence that is available in this case in either Russian or English language.
4. Factual Background
The Complainant was established in 1997. It offers an online search engine for cheap flights, hotels and car hire services.
The Complainant is the owner of the following registrations of the trademark MOMONDO (the “MOMONDO trademark”):
- The Community trademark MOMONDO with registration No. 005944855, registered on April 8, 2008 for goods and services in International Classes 35, 39, 41, 42, 43 and 45;
- The Community trademark MOMONDO with registration No. 010052843, registered on November 24, 2011 for goods and services in International Classes 16, 30 and 33; and
- The International trademark MOMONDO with registration No. IR 1053763, registered on September 24, 2010 for a number of jurisdictions including the Russian Federation for goods and services in International Classes 35, 39, 41, 42, 43 and 45.
The disputed domain name was registered on September 24, 2014. It redirects to the website at “www.aviasales.ru”, which offers airplane tickets and hotel booking services.
5. Parties’ Contentions
A. Complainant
The Complainant submits that the disputed domain name is an example of typosquatting and is visually and phonetically confusingly similar to the MOMONDO trademark.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name, as it is not known by it, has not been authorized by the Complainant to use the MOMONDO trademark or any similar mark and has never made any bona fide use of the disputed domain name.
According to the Complainant, the disputed domain name was registered and is being used in bad faith. It has been registered primarily for the purpose of disrupting the business of a competitor and for attracting traffic to the Respondent’s own website by typosquatting the Complainant’s MOMONDO trademark and taking an unfair advantage of it. For a period of time, the disputed domain name redirected visitors to the website at “www.aviasales.guru”, and later it started redirecting them to the website at “www.aviasales.ru”. Both of these websites are direct competitors to the Complainant and offer the same services, and the domain name <aviasales.guru> is registered by the Respondent. The Respondent thus uses the disputed domain name to free ride on the Complainant’s MOMONDO trademark in an attempt to attract Internet traffic and redirect it to competing websites for commercial gain.
B. Respondent
The Respondent did not submit a formal Response in this proceeding. It sent three brief email messages to the Center, by which it alleged that on February 12, 2015 it had transferred the control over the disputed domain name to an unidentified third party and so it no longer had any relation to the disputed domain name, and requested the Center to contact the third party.
6. Discussion and Findings
Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(i) the disputed 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 disputed domain name; and
(iii) the Respondent has registered and is using the disputed domain name in bad faith.
By Rules, paragraph 5(b)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…” In the event of a default, under Rules, paragraph (14)(b): “…the Panel shall draw such inferences therefrom as it considers appropriate.”
As stated by the UDRP panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques, WIPO Case No. D2000-0004: “Here, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent.”
At the same time, it is a consensus view among UDRP panelists that a respondent’s default does not automatically result in a decision in favor of the complainant. Even in cases where the respondent is in default, to justify the transfer of the disputed domain name the complainant must establish each of the three elements required by paragraph 4(a) of the UDRP.
A. Identical or Confusingly Similar
To satisfy the first UDRP element, the disputed domain name must be identical or confusingly similar to a trademark, in which the Complainant has rights. The Complainant has demonstrated its rights in the MOMONDO trademark by providing evidence of its registration for many countries.
As discussed in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), the threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion.1 A domain name which contains a common or obvious misspelling of a trademark normally will be found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the domain name.2 It is also widely accepted that the generic Top-Level Domain (gTLD) suffix in the domain name would usually be disregarded under the confusing similarity test, as it is a technical requirement of registration.
Therefore, the relevant part of the disputed domain name for the purposes of the test for confusing similarity is its “momonddo” section. This section appears to the Panel to be a misspelling of the MOMONDO trademark, and the Respondent has provided no explanation of its meaning. In the Panel’s view, the repetition of the letter “d” in the disputed domain name does nothing to detract from the confusing similarity between it and the MOMONDO trademark, which appears as the dominant component of the disputed domain name. Therefore, the Panel finds that the disputed domain name is confusingly similar to the MOMONDO trademark in which the Complainant has rights, and that the Complainant has established the first element of paragraph 4(a) of the Policy in relation to the disputed domain name.
B. Rights or Legitimate Interests
The Policy requires the Complainant to make at least a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name. Once the Complainant makes such a showing, the Respondent may provide evidence to demonstrate that it has rights or legitimate interests in the disputed domain name. The burden of proof, however, always remains on the Complainant to establish that the Respondent lacks rights or legitimate interests in the disputed domain name.3
The Complainant has contended that the Respondent has no rights or legitimate interests in the disputed domain name, stating that the Respondent is not known by it, has not been authorized by the Complainant to use the MOMONDO trademark or any similar mark and has never made any bona fide use of the disputed domain name. The Complainant also asserts that the Respondent uses the disputed domain name to redirect its visitors to other websites that offer services in competition with the Complainant. Thus, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent, although given a fair opportunity to do so, chose not to present to the Panel a formal Response in accordance with the Rules, paragraph 5(b)(i) and 5(b)(ix), despite the consequences that the Panel may extract from the fact of a default (Rules, paragraph 14). If the Respondent had any legitimate reasons for the registration and use of the disputed domain names, it could have brought it to the attention of the Panel. In particular, the Respondent has failed to deny the contentions of the Complainant and to contend that any of the circumstances described in Policy, paragraph 4(c), is present in its favor. The Respondent chose only to make a statement that it no longer controlled the disputed domain name.
In this situation, apart from the factual contentions of the Complainant, the only other sources of information about the Respondent is the WhoIs information, provided by the Registrar, and the content of the website at the disputed domain name. The WhoIs information contains no evidence that the Respondent is commonly known by the disputed domain name. The disputed domain name is confusingly similar misspelling of the MOMONDO trademark. As contended by the Complainant and undisputed by the Respondent, the disputed domain name redirects visitors to competitors of the Complainant.
In the Panel’s view, in these circumstances it is unlikely that the registration of the disputed domain name was coincidental. The Respondent must have been aware of the Complainant and of the MOMONDO trademark when it registered the disputed domain name, and its registration and use, made without the consent of the Complainant, was likely an attempt to take advantage of the goodwill of the Complainant and of the MOMONDO trademark by attracting Internet traffic to the Respondent’s website and diverting it to other websites that compete with the Complainant. The Panel is of the opinion that such conduct cannot give rise to rights and legitimate interests in the disputed domain name, and finds that the Complainant’s prima facie case has not been rebutted. Therefore, the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
The Complainant asserts that the disputed domain name was registered primarily for the purpose of disrupting the business of the Complainant and for attracting traffic to the Respondent’s domain name <aviasales.guru> by typosquatting the Complainant’s MOMONDO trademark and taking an unfair advantage of it. Later, the disputed domain name started to redirect visitors to the website at “www.aviasales.ru”. Both of these websites are direct competitors to the Complainant and offer the same services.
As discussed above in relation the issue of rights and legitimate interests, the Respondent is likely to have known of the Complainant and of its services prior to the registration of the disputed domain name, which is confusingly similar to the MOMONDO trademark, and has registered the disputed domain name without having any rights or legitimate interests in it. As contended by the Complainant and not denied by the Respondent, the disputed domain name redirects visitors to competitors of the Complainant, one of which used a domain name, registered by the Respondent. In the Panel’s view, these circumstances support a finding that by choosing and registering, without authorization from the Complainant, a domain name that is confusingly similar to the MOMONDO trademark with knowledge of this confusing similarity, the Respondent is likely to have targeted the Complainant and to have registered the disputed domain name in bad faith in an attempt to extract commercial gain or to disrupt the business of the Complainant. The Respondent has not denied that the website linked to the disputed domain name redirects visitors to competitors of the Complainant. In the absence of any evidence or allegation to the contrary, the circumstances of this case satisfy the Panel that by using the disputed domain name, confusingly similar to the MOMONDO trademark, the Respondent, has intentionally attempted to attract for commercial gain Internet users to the website at the disputed domain name and to divert them to competitors of the Complainant by creating a likelihood of confusion with the MOMONDO trademark as to the source or endorsement of the services offered on the websites to which the disputed domain name redirects its visitors. This supports a finding of bad faith registration and use of the disputed domain name under Policy, paragraph 4(b)(iii) and (iv).
Therefore, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith.
7. Decision
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 <momonddo.com> be transferred to the Complainant.
Assen Alexiev
Sole Panelist
Date: May 7, 2015
1 See Paragraph 1.2 of the WIPO Overview 2.0.