WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Airbnb, Inc. v. Ashley B, Airbnb NOW
Case No. D2017-1135
1. The Parties
Complainant is Airbnb, Inc. of San Francisco, California, United States of America (“United States”), represented by Kilpatrick Townsend & Stockton LLP, United States.
Respondent is Ashley B, Airbnb NOW of Santa Monica, California, United States.
2. The Domain Name and Registrar
The disputed domain name <airbnbnow.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 June 9, 2017. On June 9, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 11, 2017, 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 June 19, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 9, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 10, 2017.
The Center appointed Timothy D. Casey as the sole panelist in this matter on July 19, 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
Respondent registered the disputed domain name on August 23, 2016. The disputed domain name resolves to a website with a similar look and feel to Complainant’s website, including the display of Complainant’s trademark and logo, inviting Internet users to provide their email addresses to take advantage of Complainant’s services.
Complainant is the owner of the service mark and trademark AIRBNB (the “Mark”), which has been in use since March 2009. The Mark is registered in a number of countries, including the United States. United States trademark registrations registered prior to registration of the disputed domain name include:
a. Registration No. 3,890,025 for “Providing online business directories featuring temporary lodging” in International Class 35 (registered on December 14, 2010);
b. Registration No. 4,495,076 for “providing online interactive bulletin board for transmission of messages among computer users concerning listing, rental and leasing of real estate; electronic mail service; providing online electronic bulletin boards for transmission of messages among computer users concerning rankings, ratings, reviews, referrals, and recommendations relating to business organizations and service providers; telecommunications services, namely, the electronic transmission of data and information; providing an online, interactive bulletin board for the transmission of messages among computer users concerning the sale of goods and services via a global communications network; providing online forums and discussion groups for transmission of messages among computer users; and electronic transmission of images” in International Class 38 (registered on March 11, 2014);
c. Registration No. 3,890,027 for “Arranging temporary housing accommodations; Providing online reservation services for temporary lodging; Travel agency services, namely, making reservations and bookings for transportation and lodging; Providing temporary lodging information via the Internet” in International Class 43 (registered on December 14, 2010);
d. Registration No. 3,963,410 for “Providing a social networking web site for entertainment purposes” in International Class 45 (registered on May 17, 2011); and
e. Registration No. 4,289,397 (citing International Registration Nos. 1154097 and 1141260) for “Providing an online interactive website featuring the listing and rental of temporary lodging; Providing online computer database and online searchable databases featuring information, listings and announcements about housing, apartments, condominiums, townhouses, real estate, commercial real estate and rental and leasing advertisements for the foregoing; Real estate listing, rental and leasing services for residential housing, apartments, rooms in homes, sublets, vacation homes, cabins and villas and office space in commercial properties on a global computer network; Providing reviews and feedback about listers and renters of real estate” in International Class 36 (registered on February 12, 2013).
5. Parties’ Contentions
Complainant states that Airbnb matches renters of temporary lodging with owners of rental properties, provides registered users with directories of rental properties, provides property reviews, and solicits renter feedback. Airbnb also offers curated travel experiences, recommendations and tips about cities and travel, and provides other resources regarding destinations around the world.
Complainant states its services are used extensively. As of February 2017, Complainant had hosted more than 150,000,000 guests through more than 3,000,000 property listings. Airbnb’s main website, located at the domain name <airbnb.com>, is the 108th most popular website in the United States, and 406th most popular website in the world.
Complainant contends that the disputed domain name incorporates the entirety of the Mark and is therefore likely to confuse consumers as to its connection with Airbnb. Also, Complainant notes that the addition of “now” and “.com” to the Mark do nothing to diminish the substantial identity between the Mark and the disputed domain name. In support of this assertion, Complainant cites the WIPO Overview 2.0, “[i]n order to satisfy [the threshold test for confusing similarity], the relevant trademark would generally need to be recognizable as such within the domain name, with the addition of common, dictionary, descriptive, or negative terms . . . typically being regarded as insufficient to prevent threshold Internet user confusion.” Section 1.2, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) (superseded by WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). Complainant adds that use of the word “now” in the disputed domain name actually serves to increase the likelihood of confusionbecause that word conveys to consumers that the website found at the disputed domain name is the way to access Complainant’s services “now.”
Complainant alleges that Respondent is not using and has never used the disputed domain name in connection with the bona fide offering of goods or services, noting that Respondent’s website mimics aspects of Complainant’s website, including use of Complainant’s logo and corporate color, and “invites visitors to enter their email addresses to ‘[g]et the best rent value possible.’” Complaint, at 10. On this basis, Complainant contends that Respondent is intentionally misleading consumers into believing Respondent’s website is either operated by, or affiliated with, Complainant. Complainant further notes there is no indication that Respondent is commonly known by the dispute domain name and that Complainant has not authorized Respondent’s use of the Mark. Complainant also alleges that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name because Respondent is using the disputed domain name for Respondent’s financial gain by diverting consumers to Respondent’s website that purports to promote its rental services, which would compete with Complainant’s services.
Complainant notes that Respondent’s registration was well after Complainant’s first use of the Mark (over seven years) and that Respondent’s use of the Mark, its logo, and its corporate color on Respondent’s website make it clear that Respondent likely had actual knowledge of Complainant’s rights in the Mark before registering the disputed domain name.
Complainant further notes that Respondent is using the disputed domain name to engage in phishing (i.e., “for the purpose of obtaining information from Internet users believing themselves to be dealing with the Complainant.” The Royal Bank of Scotland Group plc v. Secret Registration Customer ID 232883 / Lauren Terrado, WIPO Case No. D2012-2093). Complainant contends that Respondent’s website asks visitors “Are You Looking For The Best Rent? Just A Few Steps Away”, and states “Get the best rent value possible. The best accommodation requests from the most reliable candidates. All in just a few simple steps to try our service today! Your satisfaction is guaranteed!” Complainant alleges that Respondent’s registration and use of the disputed domain name constitutes bad faith because Respondent has used the disputed domain name to capitalize on consumers’ familiarity with the Mark (as well as other aspects of Complainant’s trade presence), so as to “intentionally attract Internet users to Respondent’s website and thereafter either to: (a) perpetrate a phishing scheme; or (b) sell competing services; or (c) do both.” Complaint, at 13.
Thus, “it must be the case that even the Respondent itself regards the disputed domain name as confusingly similar to the Complainant’s trademarks.” Id.; see id. (“While the content of the website is not strictly relevant to an assessment of confusing similarity, an effective ‘phishing’ site must, of necessity, entail consumer confusion and so lend weight to a finding of confusing similarity.”)
Complainant requests the disputed domain name to be transferred to Complainant.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
In view of Respondent’s failure to reply to Complainant’s contentions, the Panel will treat Complainant’s contentions as true and undisputed unless it is unreasonable or unnecessary to do otherwise.
A. Identical or Confusingly Similar
Complainant’s trademark registrations in the United States are sufficient to establish that Complainant has trademark rights in the Mark.
Complainant contends that the disputed domain name incorporates the entirety of the Mark and that the addition of a generic Top-Level Domain (“gTLD”) suffix and the dictionary word “now” are meaningless and further contribute to confusion between the Mark and the disputed domain name and Respondent’s use. The Panel finds that the disputed domain name is confusingly similar to the Mark. The Panel also agrees that the incorporation of a gTLD suffix and the word “now” do nothing to further distinguish the disputed domain name from the Mark.
The Panel finds that the disputed domain name is confusingly similar to a trademark in which Complainant has rights.
B. Rights or Legitimate Interests
The Panel finds that Respondent has no rights or legitimate interests in the dispute domain name. Respondent does not appear to be commonly known by the disputed domain name. Complainant has not authorized Respondent to use or register the disputed domain name. Respondent’s website does nothing to create any legitimate interests in the disputed domain name because its operation as a phishing website or a competitive service offering to Complainant’s services, or both, do not constitute a bona fide offering of goods or services.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Given the timing of Complainant’s registration of the Mark and use in association with the noted services among so many people around the world, and the timing of Respondent’s subsequent registration of the disputed domain name and its creation of a website using wording, logos, colors and other aspects that clearly associate the disputed domain name with Complainant’s services, the Panel finds that registration of the disputed domain name was in bad faith.
The Panel notes that use of the disputed domain name by Respondent to phish information from consumers confused into thinking that Respondent’s website is somehow associated with Complainant’s services and/or to offer services that compete with those of Complainant cannot be by coincidence. Hence, the Panel finds such usage to constitute use in bad faith consistent with paragraph 4(b)(iv) of the Policy.
The Panel concludes that the disputed domain name was registered and used in bad faith.
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 <airbnbnow.com> be transferred to Complainant.
Timothy D. Casey
Date: August 2, 2017