WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Fareportal Inc. v. Mack
Case No. D2015-1499
1. The Parties
Complainant is Fareportal Inc. of New York, New York, United States of America ("US"), represented by Cowan, DeBaets, Abrahams & Sheppard, LLP, US.
Respondent is Mack of Pittsburgh, Pennsylvania, US.
2. The Domain Name and Registrar
The disputed domain name <cheap0airs.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 21, 2015. On August 24, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 25, 2015, the Registrar 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" 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 31, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 20, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on September 21, 2015.
The Center appointed Sandra A. Sellers as the sole panelist in this matter on October 7, 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.
4. Factual Background
Complainant develops computer software used to power travel websites, including "www.cheapoair.com", which offer airfare, temporary lodging, car rentals and vacation packages. Complainant owns US trademark registrations for CHEAPOAIR, CHEAPOAIR.COM, and WWW.CHEAPOAIR.COM (collectively, the "CHEAPOAIR marks"). The CHEAPOAIR mark was registered in February 2009, and has achieved incontestable status on the US Principal Register. Complainant has invested hundreds of millions of US dollars, time and resources developing and promoting its Internet-based travel agencies under the CHEAPOAIR marks. It is a recognized source of low-priced travel services, and has acquired substantial good will.
Respondent registered the disputed domain name, <cheap0airs.com>, on August 1, 2015. Respondent maintains a website that offers travel-related services including airfare, temporary lodging, and various travel packages. The website prominently displays "Cheap0airs" – with a zero that looks like a capital "O" – which looks similar to Complainant's CHEAPOAIR mark used on Complainant's websites.
5. Parties' Contentions
Complainant asserts that it has rights in the CHEAPOAIR mark. It contends that the disputed domain name is confusingly similar to Complainant's mark because it consists of Complainant's mark in its entirety, and that the only difference between Complainant's mark and the disputed domain name is replacing the "O" with a zero, and adding an "s" at the end. Complainant further alleges that Respondent has no rights or legitimate interests in the disputed domain name, and that it registered and uses the disputed domain name in bad faith.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
To satisfy paragraph 4(a)(i) of the Policy, Complainant must show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights.
As set forth above, Complainant owns various trademark registrations for the CHEAPOAIR mark. The disputed domain name is confusingly similar to Complainant's mark because it consists of Complainant's mark in its entirety, and the only difference between Complainant's mark and the disputed domain name is replacing the "O" with a zero, and adding an "s" at the end. Replacing the "O" with "0" constitutes typosquatting. A domain name which contains a common or obvious misspelling of a trademark is confusingly similar to the mark where the misspelled trademark remains the dominant or principal component of the domain name. Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775. Many UDRP panels have held that the addition of a letter, particularly an "s" that makes the word plural, does not typically distinguish the disputed domain name sufficiently to avoid a finding of confusing similarity.
Complainant has proven paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Because it is generally difficult for a complainant to prove the fact that a respondent does not have any rights or legitimate interests in a disputed domain name, previous UDRP panels have found it sufficient for a complainant to make a prima facie showing of its assertion where there has been no response.
Complainant has exclusive rights in the CHEAPOAIR mark and has not authorized Respondent to register and use the disputed domain name <cheap0airs.com>. Respondent is not affiliated with or related to Complainant, nor is Respondent licensed or authorized to use the CHEAPOAIR mark. Respondent is not known under the mark. Respondent has made no showing that it has any legitimate interest in using the disputed domain name or a bona fide offering of goods or services under the mark. On the evidence before the Panel, Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name.
The Panel is satisfied that Complainant has made a prima facie showing of Respondent's lack of rights or legitimate interests in the disputed domain name.
Respondent is in default, and has not provided any evidence in its own favor.
The Panel finds that the evidence in the record is sufficient to establish that Respondent has no rights or legitimate interests in the disputed domain name, and thus Complainant meets the second criterion of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
It is difficult to conceive that Respondent did not know of Complainant's mark and services when Respondent registered the disputed domain name. As set forth above, Complainant's CHEAPOAIR marks are protected by US registrations. Complainant uses the CHEAPOAIR mark for its travel services. All of this occurred before Respondent registered <cheap0airs.com> on August 1, 2015. Further, the disputed domain name reverts to web pages containing travel services that appear to compete with Complainant's. Based on these facts, this Panel infers that Respondent was aware or must have been aware of Complainant's mark when Respondent registered the disputed domain name, and therefore registered it in bad faith. See, e.g., Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574, in which the panel found it "inevitable that [r]espondent registered the domain names in full knowledge of [c]omplainant's rights and interests".
It is clear that Respondent, by using the disputed domain name, has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or of a product or service on Respondent's website, thus using Complainant's mark in bad faith. The disputed domain name reverts to web pages showing travel-related services identical to Complainant's travel-related services. The content on the website appears designed to reinforce the Internet user's impressions that the disputed domain name belongs to Complainant. The resulting confusion is grounds for a finding of bad faith use under paragraph 4(b)(iv) of the Policy. See Pandora Jewelry, LLC v ke ying, no, bing jin, fcgem, Wei Pang, na no and fcg, xiong mao, WIPO Case No. D2010-0642.
Moreover, there has been actual confusion, as Complainant has received at least one complaint from a customer who booked travel on Respondent's website. Actual confusion reinforces the conclusion that Respondent is using the disputed domain name in bad faith.
The Panel finds that Respondent has registered and is using the disputed domain name in bad faith in violation 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 disputed domain name <cheap0airs.com> be transferred to Complainant.
Sandra A. Sellers
Date: October 21, 2015