WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Fareportal Inc. v. Jarin Lawrence
Case No. D2016-2453
1. The Parties
The Complainant is Fareportal Inc. of New York, United States of America, represented by Cowan, DeBaets, Abrahams & Sheppard LLP, United States of America.
The Respondent is Jarin Lawrence of Delhi, India.
2. The Domain Name and Registrar
The disputed domain name <flycheapoair.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 December 3, 2016. On December 5, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 6, 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.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain 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 12, 2016. In accordance with the Rules paragraph 5, the due date for Response was January 1, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 4, 2017.
The Center appointed Clive Duncan Thorne as the sole panelist in this matter on January 13, 2017. 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
According to the Complainant it is a technology company that develops computer software used to power travel related websites including the highly successful, multinational, Internet based travel agency <cheapoair.com> (the “Fareportal website”). Through this and other websites, the Complainant offers high value, low cost travel related services including airfare, temporary lodging, car rentals and vacation packages.
The Complainant’s successful position in the travel planning industry is largely due to its innovative technology, longstanding working relationships with suppliers such as commercial airline companies, and the goodwill associated with the trademarks under which the Complainant provides its services.
For nearly the past decade, the Complainant has provided its travel related services to the public using trademarks such CHEAPOAIR and variations of the mark including CHEAPOAIR.COM and WWW.CHEAPOAIR.COM in order to distinguish its services from those offered by others.
The Complainant’s marks are registered with the United States Patent and Trademark Office (“USPTO”). For instance, the Complainant is the owner of the trademark registrations number 3576166 CHEAPOAIR, registered on February 17, 2009 and with date of first use July 1, 2005 in classes 35, 39 and 43; number 4729795 CHEAPOAIR.COM, registered on May 5, 2015 in classes 35, 39 and 43; and number 4725988 WWW.CHEAPOAIR.COM, registered on April 28, 2015 in classes 39 and 43. Copies of the certificates of registration for these marks are attached as Exhibit B to the Complaint.
The Complainant has been using the CHEAPOAIR mark since July 1, 2005. This predates the registration of the disputed domain name.
The Complainant has invested hundreds of millions of dollars and expended substantial time and other resources in developing, advertising and promoting its Internet based travel agencies under among other trademarks the CHEAPOAIR mark. As a result of these activities, the Complainant has developed considerable goodwill in its marks. Consumers readily identify the Complainant’s marks as being of the highest quality and emanating exclusively from being sponsored and approved by the Complainant. As a result of the extensive use and promotion by the Complainant of these marks, it now owns valuable goodwill in the marks which increases the value of the Complainant’s assets.
No Response is filed by the Respondent. Accordingly, in the absence of any evidence to the contrary, the Panel accepts the above evidence as submitted by the Complainant as true.
The disputed domain name was registered on June 20, 2016. The disputed domain name resolves to a website purportedly utilised for acquiring Internet users’ sensitive personal data.
5. Parties Contentions
- That the Complainant has trademark rights in the mark CHEAPOAIR.
- That the disputed domain name is confusingly similar to the mark CHEAPOAIR.
- The Respondent has no legitimate rights or interest in the disputed domain name.
- The Respondent has registered and is using the disputed domain name in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has adduced evidence of its rights in the mark CHEAPOAIR as set out above.
The Complainant submits that the disputed domain name is confusingly similar to the mark CHEAPOAIR in that it incorporates the entirety of the mark CHEAPOAIR in the disputed domain name. The disputed domain name consists of the word “cheapoair” with the prefix consisting of the word “fly”. The Complainant submits that the word “fly” is most commonly identified with air travel and is distinctive of the Complainant’s activities.
The Panel accepts this submission and therefore finds for the Complainant in respect of this element.
B. Rights or Legitimate Interests
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name and is not using the disputed domain name for any bona fide or otherwise fair purpose. It points out that the Respondent is not authorised to use the mark CHEAPOAIR by the Complainant. The Respondent is not a licensee of the Complainant nor has it obtained permission either express or implied from the Complainant to use the mark or any domain name incorporating the mark either when the Respondent registered and began using the disputed domain name or at any time since.
There is no evidence that the Respondent is or has ever been commonly known by the disputed domain name. Similarly there is no evidence that the Respondent has ever operated any bona fide website under the disputed domain name or that it has any legitimate interest in it. The Respondent is not making any protected noncommercial or fair use of the disputed domain name.
The Respondent appears to use the disputed domain name to misdirect or “bait” Internet users seeking the Complainant’s travel related services to its website. The Complainant submits that this is for the purpose of procuring Internet users’ sensitive personal or financial data and information including user names, passwords and credit card details. Moreover the Respondent’s activities do not give it the right to register and use the Complainant’s mark as a domain name.
The Panel takes into account that the Respondent’s website appears to be a phishing website utilised for the purpose of acquiring Internet users’ sensitive personal data. This can be seen from Exhibit D to the Complaint which consists of screenshots of the Respondent’s website.
It follows, in the Panel’s view that the Complainant succeeds in showing that the Respondent has no legitimate rights or interest in the disputed domain name.
C. Registered and Used in Bad Faith
The Complainant relies upon well settled authority that the Respondent’s method of trading is not legitimate because it uses the Complainant’s mark CHEAPOAIR to confusingly misdirect consumers to its website and that this constitutes bad faith under the terms of the Policy.
The Complainant emphasises that numerous UDRP panels have found use of a domain name in connection with a phishing site attempting to solicit sensitive data to constitute bad faith.
The Complainant also submits that the Respondent’s use of the disputed domain name creates confusion by attracting Internet users to the website based upon the Respondent's use of the Complainant’s mark CHEAPOAIR. This constitutes further evidence of the Respondent's bad faith use.
The Complainant submits that the Respondent’s conduct will damage the Complainant’s marks and that the Respondent must have anticipated that any use of the disputed domain name would cause damage to the Complainant. It submits that the disputed domain name is so “obviously indicative” of the Complainant’s services that the Respondent’s use of the disputed domain name would at a minimum “inevitably lead to confusion of some sort”.
In the absence of any evidence or submissions to the contrary from the Respondent, the Panel accepts the Complainant’s submissions and finds that the disputed domain name was registered and used in bad faith by the Respondent.
For all 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 <flycheapoair.com> be transferred to the Complainant.
Clive Duncan Thorne
Date: January 23, 2017