WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Trivago N.V. v. Aflaq Latif
Case No. D2019-2960
1. The Parties
Complainant is Trivago N.V., Germany, internally represented.
Respondent is Aflaq Latif, United Kingdom.
2. The Domain Names and Registrar
The disputed domain names <flightstrivago.com> and <holidaytrivago.com> are registered with 123‑Reg Limited (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2019. On December 3, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 4, 2019, 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 December 17, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 6, 2020. The Center received two informal email communications from Respondent on December 27, 2019. Complainant requested suspension of the proceeding on January 3, 2020, and the proceeding was suspended on the same date. On January 22, 2020, Complainant requested the Center to reinstitute the proceeding. The proceeding was reinstituted on January 23, 2020, and the Response due date was January 27, 2020.
Respondent did not submit any formal response. Accordingly, the Center notified the Parties on January 28, 2020, that it would proceed to panel appointment. The Center received four informal email communications on January 29, 2020, and one informal email communication on January 30, 2020, in which Respondent offered to transfer the disputed domain names to Complainant in exchange for payment.
The Center appointed Ingrida Karina-Berzina as the sole panelist in this matter on February 14, 2020. 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
Complainant is a company incorporated in the Netherlands with its principal place of business in Germany, operating a worldwide hotel comparison website and it (or its predecessor entity) is the proprietor of international trademark registrations for the TRIVAGO mark, including the following:
- International trademark registration 910828 for TRIVAGO (word mark), registered on August 18, 2006in classes 35, 38, 39 and 42;
- International trademark registration 1211017 for TRIVAGO (word mark) registered on November 18, 2013 in classes 35, 38, 39, 42 and 43.
Complainant operates a website at “www.trivago.com”.
Both disputed domain names were registered by Respondent on August 31, 2016, using a proxy service. Neither domain name currently resolves to an active website. Previously, both domain names resolved to websites comparing hotel and travel offers.
5. Parties’ Contentions
Complainant’s contentions may be summarized as follows:
Under the first element, Complainant states that it has registered rights in the TRIVAGO mark for, inter alia, services related to price comparison services, travel reservations and booking, providing information about travel and tourism. The disputed domain names incorporate Complainant’s TRIVAGO mark in its entirety, prefaced by the terms “holiday” and “flights.” Such additional terms do not negate the confusing similarity caused by Respondent’s integration of Complainant’s mark in the disputed domain names. The <holidaytrivago.com> site, in which hotel offers were compared, makes use of a competitor of Complainant, namely the “Hotels Combined” search service.
Under the second element, Complainant states that there is no evidence that Respondent owns any rights or legitimate interests in respect of the disputed domain names. Complainant is not affiliated with Respondent and has not granted Respondent a license nor permission to use Complainant’s trademarks. It does not appear that Respondent has filed nor registered trademarks for “holidaytrivago” or “flightstrivago”. Respondent’s website lacks identifying features, and Respondent is not commonly known by the disputed domain names. There is no evidence that Respondent is making a bona fide or legitimate non-commercial or fair use of the disputed domain names. Rather, Respondent is using the disputed domain names intentionally for commercial gain, to divert consumers and to tarnish the trademark of Complainant. Respondent’s websites operates in the travel industry and offers the same services as Complainant, thereby confusing Internet users. The TRIVAGO mark has no dictionary meaning, and was registered and in use for a decade prior to the registration of the disputed domain names.
Under the third element, Complainant states that the disputed domain names are confusingly similar to Complainant’s TRIVAGO mark, and Respondent provides similar services to Internet users. Respondent intentionally attempts to attract users for commercial gain. The disputed domain names were selected in the knowledge of Complainant’s TRIVAGO mark and brand, and to capitalize on Internet traffic intended for Complainant’s website. Complainant’s website operates in 55 markets and is available in over 30 languages, and has been operating since 2006. Complainant is publicly listed on NASDAQ and has annual revenues of approximately EUR 1 billion, and has pioneered hotel metasearch. Complainant promotes its mark worldwide, including on television. It is not plausible that Respondent was unaware of Complainant’s business or trademarks.
Respondent did not reply to Complainant’s contentions. In informal email communications with the Center after the deadline to reply had passed, Respondent offered to release the domains to Complainant in exchange for payment of GPB 50,000 per domain.
6. Discussion and Findings
Given the facts in the case file and Respondent’s failure to file a response, the Panel accepts as true the contentions in the Complaint. Nevertheless, paragraph 4(a) of the UDRP requires Complainant to make out all three of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) Respondent has registered and is using the disputed domain name in bad faith.
A. Identical or Confusingly Similar
Complainant has provided evidence establishing that it has trademark rights in the TRIVAGO mark through registrations in jurisdictions around the world, thereby satisfying the threshold requirement of having trademark rights for purposes of standing to file a UDRP case. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Overview 3.0”), section 1.2.1.
In comparing Complainant’s TRIVAGO mark with the disputed domain names, the Panel finds that the disputed domain names are confusingly similar with the TRIVAGO mark, since both disputed domain names contain the mark in its entirety. The addition of the prefixes “flights” and “holiday” in the disputed domain names does not prevent a finding of confusing similarity. Complainant’s TRIVAGO mark is clearly recognizable within both disputed domain names.
Section 1.7 of the WIPO Overview 3.0 provides: “It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trademark and the disputed domain name.”
It is the well-established view of UDRP panels that the addition of the generic Top-Level Domain (“gTLD”) to the disputed domain name does not prevent the disputed domain name from being confusingly similar to Complainant’s trademark (see WIPO Overview 3.0, section 1.11.1, and cases cited thereunder).
Accordingly, the Panel finds that Complainant has established the first element under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in a domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, Respondent’s 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) Respondent has been commonly known by the Domain Name, even if it has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The circumstances stated in the Complaint and evidence in support set forth in the Annexes indicate that Respondent has no rights or legitimate interests in the disputed domain names. The nature of the disputed domain name, adding the dictionary terms “flights” and “holiday” to Complainant’s TRIVAGO mark, cannot constitute fair use because Respondent thereby effectively impersonates or suggests sponsorship or endorsement by Complainant, the trademark owner. See WIPO Overview 3.0, section 2.5.1.
The Panel finds that there is no evidence that Respondent is commonly known by the disputed domain names or is using the TRIVAGO mark with permission of Complainant. Rather, the record supports Complainant’s express assertion that such permission does not exist. Complainant’s rights in the TRIVAGO mark predate the registration of the disputed domain names by nearly a decade. The Panel finds that the evidence submitted by Complainant establishes a prima facie case that Respondent has no rights or legitimate interests in the disputed domain names.
Pursuant to WIPO Overview 3.0., section 2.1, and cases thereunder, where Complainant makes out a prima facie case that Respondent lacks rights or legitimate interests, the burden of production on this element shifts to Respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name.
Respondent, in failing to timely file a response, has not submitted any evidence or arguments demonstrating such rights or legitimate interests, nor has it rebutted any of Complainant’s contentions. There is no information available that would support a finding of a fair use of the disputed domain names. Considering the similarity between Complainant’s distinctive TRIVAGO mark and the disputed domain names and the fact that the disputed domain names resolved to websites offering services identical to that of Complainant, there can be no finding or rights or legitimate interests in the disputed domain names.
Accordingly, the Panel finds that Complainant has established the second element under paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use the disputed domain name in bad faith:
(i) circumstances indicating that Respondent has registered or has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel finds bad faith under Policy paragraph 4(b)(i) and 4(b)(iv). The record in the case demonstrates that Respondent chose the disputed domain names deliberately for the purpose of impersonating or attempting to create an association with Complainant. Complainant’s rights in the TRIVAGO mark significantly predate the registration of the disputed domain names. The TRIVAGO mark is distinctive in respect of the services for which it is registered and used. The disputed domain names both contain Complainant’s TRIVAGO mark in its entirety, with the addition of dictionary terms that strengthen the association with Complainant. The Panel finds that such a registration creates a presumption of bad faith. See WIPO Overview 3.0, section 3.1.4, describing the types of evidence that may support a finding of bad faith.
Having established that the disputed domain names were registered in bad faith, the Panel next turns to the issue of whether Respondent has engaged in bad faith use of the disputed domain names. The Panel finds that Respondent has demonstrated bad faith use in establishing websites featuring services substantially identical to those of Complainant.
Respondent has failed to file any response or provide any evidence of actual or contemplated good faith use, and the circumstances do not make any such use plausible.
In addition, after the deadline to file a formal response in this proceeding had passed, Respondent sought to sell the domain names to Complainant for sums far in excess of the costs of registration.
The Panel therefore finds that Complainant has established the third element under paragraph 4(a) 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 names, <flightstrivago.com> and <holidaytrivago.com>, be transferred to Complainant.
Date: February 28, 2020