WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Hotwire, Inc. v. Elia Tan, Domain Dotter
Case No. D2015-2148
1. The Parties
The Complainant is Hotwire, Inc. of San Francisco, California, United States of America ("United States"), represented by Kilpatrick Townsend & Stockton LLP, United States.
The Respondent is Elia Tan, Domain Dotter of Montreal, Canada.
2. The Domain Name and Registrar
The disputed domain name <nhotwire.com> (the "Domain Name") is registered with Wild West Domains, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 25, 2015. On November 26, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 30, 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.
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 the Respondent of the Complaint, and the proceedings commenced on December 3, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 23, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 28, 2015.
The Center appointed Nicholas Smith as the sole panelist in this matter on January 4, 2016. 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 United States company that operates a discount travel website at "www.hotwire.com" (the "Complainant's Website"), from which it offers online services enabling customers to book airline tickets, hotel rooms, rental cars and vacation packages. The Complainant's Website was launched in 2000 and as of 2015, is ranked the 640th most visited website in the United States.
The Complainant and its predecessor in title have held trade mark registrations for HOTWIRE (the "HOTWIRE Mark") since at least 2003, including United States trade mark HOTWIRE, registered January 7, 2003, with a date of first use in commerce of September 24, 2000. Its trade mark registrations for the HOTWIRE Mark cover a range of travel and retail services and include registrations in a large number of countries around the world.
The Domain Name <nhotwire.com> was created on 25 April, 2010. It is currently inactive however prior to the commencement of this proceeding, it revolved to a portal site (the "Respondent's Website") that provided a number of links to third-party commercial sites offering discount hotel and travel deals and the statement "nhotwire.com – This website is for sale".
5. Parties' Contentions
The Complainant makes the following contentions:
(i) that the Domain Name is identical or confusingly similar to the Complainant's HOTWIRE Mark;
(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant is the owner of the HOTWIRE Mark. It owns trade mark registrations for the HOTWIRE Mark in various jurisdictions around the world.
The Domain Name consists of a misspelling of the HOTWIRE Mark. The only difference between the HOTWIRE Mark and the Domain Name is the addition of the letter "n" at the beginning of "hotwire". The Domain Name is confusingly similar to the HOTWIRE Mark.
The Respondent has no rights or legitimate interests in the Domain Name. The Respondent has no trade mark rights or licence to use the HOTWIRE Mark, nor is it commonly known by the name. The Respondent has not used or made preparations to use the Domain Name in connection with a bona fide offering of goods and services, nor is the Respondent making a legitimate noncommercial or fair use of the Domain Name. The Domain Name leads to a parking website which features links related to travel and the booking of flights and makes reference to the Complainant's Website at "www.hotwire.com".
The Domain Name was registered and is being used in bad faith. The Respondent is a serial cybersquatter and has sought to take advantage of Internet users typing an incorrect address when seeking to access the Complainant's website, a practice dubbed "typosquatting" and condemned in a number of UDRP decisions. The Respondent aims to divert traffic from Internet users interested in accessing the Complainant's services and receives revenue for this purpose. The Respondent has registered and used the Domain Name in bad faith by registering the Domain Name while being aware of the Complainant's rights and then using the Domain Name for financial gain.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
To prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant's trade or service mark.
The Complainant is the owner of the HOTWIRE Mark, having registrations for HOTWIRE as a trade mark in the United States and various locations around the world.
The Domain Name consists of the HOTWIRE Mark with the addition of the letter "n" before "h". The addition of the letter "n" does not operate to prevent a finding of confusing similarity between the HOTWIRE Mark and the Domain Name, especially in circumstances where "n" is directly below "h" on a standard QWERTY keyboard and a single slip of the finger would result in an Internet user who intended to visit the Complainant's Website at "www.hotwire.com" visiting the Respondent's Website instead. The Panel finds that the Domain Name is confusingly similar to the Complainant's HOTWIRE Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate Interests
To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
"Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the HOTWIRE Mark or a mark similar to the HOTWIRE Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a legitimate noncommercial use.
The Respondent has used the Domain Name to operate a website that contains a number of links to third party commercial sites that offer services that compete with the Complainant. It is likely that the Respondent receives revenue from people who mistakenly visit its website and click on these links. This activity does not amount to a bona fide offering of goods or services.
The Respondent has had the opportunity to put on evidence of its rights or legitimate interests, including submissions as to why its conduct demonstrates a right or legitimate interest in the Domain Name under the Policy. In the absence of such a response the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of the Domain Name in bad faith:
(i) circumstances indicating that the Respondent has registered or has 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 trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) the Respondent has registered the Domain Name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, the 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 the 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 the Respondent's website or location.
The Panel finds that it is likely that the Respondent was aware of the Complainant and its reputation in the HOTWIRE Mark at the time the Domain Name was registered. The Respondent's Website makes reference to the Complainant and offers services that compete with those offered by the Complainant. The Respondent does not provide, nor is it apparent to the Panel, any reason why the Domain Name was registered other than by reference to the Complainant. The registration of the Domain Name in awareness of the Complainant and any rights it had at the time in the HOTWIRE Mark and in the absence of rights or legitimate interests amounts to registration in bad faith.
The Panel finds that the Domain Name was registered to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website. In particular the Respondent's Website was a page that offered sponsored-links to third party sites. Such sites generally advertise by paying registrants on a pay-per-click basis for Internet users redirected to their sites. This means that the Respondent receives a financial reward for every Internet user redirected from the Respondent's Website to those third-party sites.
Accordingly, the Panel finds that the Respondent has registered and used the Domain Name in bad faith under 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 <nhotwire.com> be transferred to the Complainant.
Date: January 8, 2016