WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Fareportal Inc. v. Ryan G Foo, PPA Media Services / Domain Admin, Whois Privacy Corp.
Case No. D2015-1958
1. The Parties
The Complainant is Fareportal Inc. of New York, New York, United States of America (“United States”), represented by Cowan, DeBaets, Abrahams & Sheppard, LLP, United States.
The Respondent is Ryan G Foo, PPA Media Services of Santiago, Chile / Domain Admin, Whois Privacy Corp. of Nassau, New Providence, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <cheapiair.com> (the “Disputed Domain Name”) is registered with Internet.bs Corp. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 30, 2015. On November 2, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On November 4, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 5, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 6, 2015.
The Center verified that the Complaint together with 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 11, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 1, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 2, 2015.
The Center appointed John Swinson as the sole panelist in this matter on December 8, 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
The Complainant is a technology company which develops software for travel websites, including for the Internet-based travel agency “www.cheapoair.com” (the “Cheapoair Website”).
The Complainant owns trade marks registered with the United States Patent and Trademark Office for CHEAPOAIR, CHEAPOAIR.COM, and WWW.CHEAPOAIR.COM (collectively, the “Trade Mark”). The earliest of these was filed on September 11, 2008.
The Complainant has been operating the Cheapoair Website via the domain name <cheapoair.com> since July 1, 2005. This date is recorded as the date of first use in commerce on the Trade Mark registration certificates provided by the Complainant.
The Respondent did not file a Response, and consequently little information is known about the Respondent.
The Disputed Domain Name was registered on October 22, 2006.
The Disputed Domain Name redirects Internet users from the Cheapoair Website to other travel websites such as Trivago.com, Hotwire.com and Booking.com, and an assortment of other advertising and
pay-per-click (“PPC”) link websites (seemingly at random).
5. Parties’ Contentions
The Complainant makes the following contentions.
Identical or Confusingly Similar
The Disputed Domain Name is confusingly similar to the Trade Mark, as it incorporates almost the entirety of the Trade Mark, replacing the letter “o” with the letter “i”. Domain names that constitute typosquatting are by definition confusingly similar, as their attraction is that they are similar to famous trade marks.
Rights or Legitimate Interests
The Respondent has no rights to or legitimate interests in the Disputed Domain Name, and is not using the Disputed Domain Name for any bona fide or fair purpose. The Respondent is not a licensee of the Complainant, and has not otherwise obtained permission from the Complainant to use the Trade Mark, either at the time of registering the Disputed Domain Name or at any time since that date.
There is no evidence that the Respondent has been commonly known by the Disputed Domain Name, nor that the Respondent has ever operated any bona fide or legitimate business at the Disputed Domain Name. The Respondent is not making a noncommercial or fair use of the Disputed Domain Name.
The Respondent is using the Disputed Domain Name to redirect Internet users seeking the Complainant’s Cheapoair Website to competitors’ websites, likely for the purpose of receiving “affiliate” revenue for the redirection.
Registration and Use in Bad Faith
The Respondent cannot plausibly assert that it was not aware of the Trade Mark when it registered the Disputed Domain Name, as the Disputed Domain Name almost fully incorporates the Trade Mark and the websites to which the Disputed Domain Name redirects offer comparable services to the Complainant’s. The Respondent is also deemed to have constructive knowledge of the Trade Mark due to the registrations with the United States Patent and Trademark Office.
The Respondent’s registration of a domain name which is confusingly similar to the Trade Mark to misdirect Internet users to competitors’ websites is evidence of bad faith under paragraph 4(b)(iv) of the Policy. It is reasonable to infer that the Respondent receives a financial benefit from redirecting Internet users to competitors’ websites.
The Respondent’s use of the Disputed Domain Name also creates initial interest confusion, which attracts Internet users to competitors’ websites based on the Respondent’s use of the Trade Marks. This is further evidence of bad faith use of the Disputed Domain Name.
The use of a privacy service may contribute to a finding of bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark 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 Disputed Domain Name has been registered and is being used in bad faith.
The onus of proving these elements remains on the Complainant even though Respondent has not filed a Response.
A. Procedural Issues
The Respondent’s failure to file a Response does not automatically result in a decision in favour of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org, WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent’s default.
B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.
The Disputed Domain Name differs from the Trade Mark only by a substituted letter (the letter “o” in the Trade Mark is substituted for the letter “i”). It is well established that “typosquatting” can constitute confusing similarly (see Deutsche Bank Aktiengesellschaft v. New York TV Tickets Inc., WIPO Case No. D2001-1314; DaimlerChrysler Corporation v. Worshiping, Chrisler, and Chr, aka Dream Media and aka Peter Conover, WIPO Case No. D2000-1272; and Playboy Enterprises v. Movie Name Company, WIPO Case No. D2001-1201).
The Panel accordingly determines that the Disputed Domain Name is confusingly similar to the Trade Mark. The Complainant succeeds on the first element of the Policy.
C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Panel finds that the Complainant has made out a prima facie case. This finding is based upon the following:
The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. The website at the Disputed Domain Name redirects to the Cheapoair Website, to other travel websites which compete with that of the Complainant, or to various other websites from which the Panel infers the Respondent is receiving advertising revenue. The Panel accepts the Complainant’s submissions that it has not authorized the Respondent’s use of the Trade Mark or the Disputed Domain Name. In the circumstances, the Respondent’s use is not bona fide.
The Complainant has not authorized, licensed, or otherwise permitted the Respondent to use the Trade Mark or the Disputed Domain Name.
The Respondent has not been commonly known by the Disputed Domain Name, and has no trade marks which incorporate the Disputed Domain Name.
The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. The Panel considers it likely that the Respondent is generating advertising or affiliate referral revenue from the various websites to which the Disputed Domain Name redirects.
The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy.
D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.
The Complainant’s earliest Trade Mark registration was filed on September 11, 2008. Although the Complainant has not provided evidence of common law rights in the Trade Mark prior to that date, the Panel accepts that the Trade Mark was first used in commerce on July 1, 2005, as set out in the materials provided from the United States Patent and Trademark Office. This is not contradicted by the Respondent.
The Disputed Domain Name was registered on October 22, 2006, which is just over a year after the Complainant’s first use of the Trade Mark.
Although one year is not a sizeable amount of time for the Complainant to have gained a significant reputation, given the strong similarity between the Disputed Domain Name and the Trade Mark and the use that has subsequently been made of the Disputed Domain Name, the Panel considers it unlikely that the Respondent was not aware of the Complainant at the time it registered the Disputed Domain Name. In any event, the Respondent had the opportunity to dispute this, and chose not to do so.
The website at the Disputed Domain Name redirects Internet users to various different websites, including to the Complainant’s own Cheapoair Website, and to those which directly compete with the Complainant. As stated above, the Panel considers it likely that the Respondent receives affiliate revenue when Internet users make travel bookings using any of the websites to which they are redirected from the Disputed Domain Name. The Panel finds that the Respondent is using the Disputed Domain Name in bad faith.
Further, previous panels have found that if a respondent has engaged in typosquatting, that may be sufficient to establish registration and use in bad faith (see Barnes & Noble College Bookstores, Inc. v. Oleg Techino, WIPO Case No. D2006-1537; Edmunds.com, Inc. v. Yingkun Guo, dba This domain name is 4 sale, WIPO Case No. D2006-0694; and Sephora v. WhoisGuard, WIPO Case No. D2006-0845).
Finally, the Panel has identified over 40 previous UDRP decisions in which an adverse finding was made against the Respondent. The Panel considers that the Respondent has engaged in a pattern of conduct of typosquatting or registering domain names to prevent owners of trade marks from reflecting their trade marks in those domain names, which is a further indicator of bad faith registration and use under paragraph 4(b)(ii) of the Policy.
In light of the above, and in the absence of a Response and any evidence rebutting bad faith registration and use, the Panel finds that the Complainant has succeeded on the third element 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 <cheapiair.com> be transferred to the Complainant.
Date: December 21, 2015