WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Travelscape, LLC v. Owais Mushtaq
Case No. D2016-0901
1. The Parties
The Complainant is Travelscape, LLC of Bellevue, Washington, United States of America, represented by Kilpatrick Townsend & Stockton LLP, United States of America.
The Respondent is Owais Mushtaq of Srinagar, Jammu and Kashmir, India, self-represented.
2. The Domain Name and Registrar
The disputed domain name <kashmirtravelocity.com> is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 9, 2016. On May 10, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 10, 2016, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on May 13, 2016.
The Center verified that the Complaint together with the amendment to 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 May 17, 2016. The Center received email communications from the Respondent on May 18 and 31, 2016, June 3, 6 and 30, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 6, 2016. No formal Response was filed with the Center.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on June 28, 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 leading provider of consumer-directed travel services for the leisure and business traveler. Its business focuses on providing secure online reservation capabilities for air, car, hotel and vacation reservations, plus access to a vast database of destination and other travel information.
The Complainant is the owner of the trademark TRAVELOCITY ("the Mark"), registered in many countries, starting with the following: United States trademark No. 2254700 filed in January 1997 and registered on June 22, 1999.
The Complainant is also the registrant of several domain names containing the Mark, including among others, its main website <travelocity.com>, launched in 1996, which is one of the most powerful one-stop travel sites on the Internet, and which received over 6.6 million visits in April 2016.
The disputed domain name <kashmirtravelocity.com> was registered on May 2, 2015 and has been used for offering commercial tours and travel sites
5. Parties' Contentions
(i) The Complainant submits that the disputed domain name reproduces the Mark, in which the Complainant has rights, and is confusingly similar to the Mark insofar as the disputed domain name, <kashmirtravelocity.com>, contains the Mark in its entirety. The Complainant also asserts that the addition of the geographic region "kashmir" simply adds confusion to the Internet users and does not serve to distinguish the disputed domain name <kashmirtravelocity> from the Mark, which the Complainant contends is renowned.
(ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Furthermore, the Complainant contends that there is no relationship between the Respondent and the Complainant and that the Respondent does not appear to be known by the disputed domain name.
(iii) The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant alleges that the Respondent had knowledge of the Mark when registering the disputed domain name, and did so unfairly, for commercial gain.
(iv) The Complainant submits that the Respondent is using the disputed domain name to profit from the traffic generated through the disputed domain name.
(v) The Complainant requests that the disputed domain name be transferred to the Complainant.
A part from the email communications from the Respondent of May 18 and 31, 2016, June 3, 6 and 30, 2016 the Respondent did not submit a formal response to the Complainant's contentions.
In such email communications, the Respondent mainly offered to settle the dispute against compensation for the losses that his business is suffering.
After the Notification of Panel appointment, the Panel received an email communication from the Respondent on July 5, 2016, in which the Respondent reiterated its previous offer to settle against a monetary compensation. It was pointed out to the Respondent that unilateral communications with the Panel are prohibited pursuant to paragraph 8 of the Rules.
6. Discussion and Findings
6.1. Procedural Aspects
As aforementioned, no formal Response was received from the Respondent. The Center informed the parties that it would proceed to Panel Appointment pursuant to paragraph 6 of the Rules.
As discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant's arguments that the Respondent lacks rights or legitimate interests in the disputed domain name and that has acted in bad faith.
6.2. Requirements of Paragraph 4(a) of the Policy
A. Identical or Confusingly Similar
In comparing the Mark with the disputed domain name <kashmirtravelocity.com>, it is evident that the latter consists solely of the Mark, preceded by the geographic term "kashmir", and followed by the generic Top-Level Domain ("gTLD") ".com".
It is well established that the gTLD ".com" (or any other gTLD) does not generally affect the assessment of a domain name for the purpose of determining identity or confusing similarity. See Société Générale and Fimat International Banque v Lebanon Index/La France DN and Elie Khouri, WIPO Case No. D2002-0760.
The Panel finds that the disputed domain name <kashmirtravelocity.com> is confusingly similar to the Mark, which is incorporated in its entirety.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that with regard to paragraph 4(a)(ii) of the Policy this could result in the often impossible task of proving a negative proposition, requiring information that is primarily if not exclusively within the knowledge of a respondent.
Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden of production of evidence to the respondent to come forward with evidence of rights or legitimate interests in a domain name, once the complainant has made a prima facie showing, as the Panel finds the Complainant has made in this case. See Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
As previously noted, the Respondent offered no legitimate reason for selecting the disputed domain name. There is no evidence that the Respondent is commonly known by the disputed domain name.
On the contrary, the Complainant has credibly argued that (i) the Respondent and the Complainant have no relationship, (ii) the Respondent is not commonly known by the disputed domain name and (iii) the Respondent is not making a noncommercial or fair use of the disputed domain name, as it is used as a commercial tours and travels site in direct competition with the Complainant. The Panel further notes that no disclaimer appears on the website at the disputed domain name.
In the circumstances, the Panel concludes that the Complainant has established the requirement of paragraph 4(a)(ii) of the Policy with respect to the disputed domain name.
C. Registered and Used in Bad Faith
The Panel notes that the Respondent used the Mark to divert customers to his site, for commercial gain.
As noted above, the Respondent has failed to provide exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant's arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering the disputed domain name confusingly similar to the Mark and by using it to profit via a website offering competing travel related services.
It is established in prior UDRP decisions that where the respondent knew or should have known of a trademark prior to registering the disputed domain name, such conduct may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Weetabix Limited v. Mr. J. Clarke, WIPO Case No. D2001-0775.
In this case, considering that several UDRP decisions have recognized the Mark as being well-known or famous (see Travelscape, LLC v. James Calderon, Real Travel Network, Inc., WIPO Case No. D2015-1960; Travelscape, LLC v. Above.com Domain Privacy, Above.com Domain Privacy / domain admin, dcw group investments, WIPO Case No. D2016-0375 and Travelscape, LLC v. Isaac Goldstein, WIPO Case No. D2016-0376), the Panel finds that it is close to impossible that the Respondent chose to register the disputed domain name randomly with no knowledge of the Mark. See Barney's Inc. v. BNY Bulletin Board, WIPO Case No. D2000-0059; Kate Spade, LLC v. Darmstadter Designs, WIPO Case No. D2001-1384 citing Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028; and SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092.
Furthermore, it has been established in prior UDRP decisions that the registration of a domain name confusingly similar to a trademark by any entity that has no relationship to that trademark may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Pfizer Inc. v. NA, WIPO Case No. D2005-0072; AT&T Corp. v. John Zuccarini d/b/a Music Wave and RaveClub Berlin, WIPO Case No. D2002-0440; America Online, Inc. v. Anson Chan, WIPO Case No. D2001-0004; Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163 and Research In Motion Limited v. Dustin Picov, WIPO Case No. D2001-0492.
In addition, the Panel notes that many UDRP panels have held that bad faith use of a domain name by a respondent may also result from the fact its good faith use is in no way plausible (see Audi AG v. Hans Wolf, WIPO Case No. D2001-0148), considering the specificity of the activity.
Finally, some UDRP panels have held that in certain circumstances, registrants of domain names have an affirmative duty to abstain from registering and using a domain name which is either identical or confusingly similar to a prior trademark held by others and that contravening that duty may constitute bad faith. See Policy, paragraph 2(b); Nike, Inc. v. B. B. de Boer, WIPO Case No. D2000-1397; Nuplex Industries Limited v. Nuplex, WIPO Case No. D2007-0078; Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304; BOUYGUES v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325; Media General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964; and mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141.
The Panel concludes in the light of all these circumstances that the Respondent's registration and use of the disputed domain name constitute bad faith, and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case.
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 <kashmirtravelocity.com> be transferred to the Complainant.
Date: July 12, 2016