WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Airbnb, Inc. v. Adam Price, Organization Redacted

Case No. DAU2020-0002

1. The Parties

The Complainant is Airbnb, Inc., United States of America (“United States” or “U.S.”), represented by Spruson & Ferguson Lawyers, Australia.

The Respondent is Adam Price, organization redacted¹, Australia.

2. The Domain Name and Registrar

The disputed domain name <airbnb-ipo.com.au> is registered with Tucows Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 24, 2020. On January 27, 2020, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the disputed domain name. On January 27, 2020, Tucows Inc. 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 .au Dispute Resolution Policy (the “Policy” or “.auDRP”), the Rules for .au Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 3, 2020. In accordance with the Rules, paragraph 5(a), the due date for Response was February 23, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 24, 2020.

The Center appointed Frank Schoneveld as the sole panelist in this matter on February 28, 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

The Complainant is the registered holder of, amongst other trademarks in other jurisdictions, the following trademarks in Australia:

- Trade Mark Registration No. 1384382 AIRBNB registered on January 30, 2012
- Trade Mark Registration No. 1446371 AIRBNB registered on March 16, 2012.
- Trade Mark Registration No. 1592526 AIRBNB registered on February 13, 2014.

The disputed domain name <airbnb-ipo.com.au> was registered on October 19, 2019.

On January 14, 2020, the website associated with the disputed domain name displayed nearly identical copies of Complainant’s AIRBNB mark and Bélo Logo, and announced Airbnb’s impending initial public offering (which never occurred), soliciting investors to “don’t miss out on the NYSE: AIRBNB Inc. 2020 IPO” (in all capital letters) by completing a form requesting their personal information saying that “Stockmarket Insider would like to contact you about the services we offer which may be of interest to you”.

In a response to a letter from the Complainant, the Chief Executive Officer of the organization listed in the publicly available WhoIs information as that of the registrant (i.e. Registrant organization) states in a letter to the Complainant via email dated 12 December 2019 that:

“… [organization redacted] has never registered, nor was it aware that someone registered this domain using its name without any authorization. The first time this was brought to our attention was via your letter. No representative of [organization redacted] was ever authorized to register this domain and [organization redacted] cannot be held responsible for any of its actions. …”

5. Parties’ Contentions

A. Complainant

Complainant’s says that the basis for its Complaint is its use, registration, and ownership of, and reputation in, the AIRBNB mark (“AIRBNB Mark”, “Complainant’s Mark”, or the “Mark”) as well as the <airbnb.com> domain name, other domains incorporating the AIRBNB Mark (e.g., <airbnb.com.au>, <airbnb.fe>), and their corresponding websites and services.

Complainant states that it is the owner of the popular AIRBNB brand, known worldwide for its approach to people-powered travel and hospitality, and is a trusted community marketplace for people to list, discover, and book accommodations around the world via the Internet, so users can connect with each other and with unique properties and geographic locations by matching renters of temporary lodging with owners of rental properties, providing directories of rental properties, and having property reviews and renter feedback. Complainant also states that it (a) offers curated “Trips”, “Guidebooks”, travel recommendations, and other resources sourced from local experts in destinations around the world, and (b) provides users with opportunities to engage in a wide range of new experiences, so that through Complainant’s services travelers can book a range of activities as part of their travel plans.

Complainant says that there are now more than 7 million active listings on Complainant’s service and its services are used by customers in more than 100,000 cities spanning over 221 countries and regions, including Australia. Complainant submits that it has received extensive media attention, with many celebrity endorsements, and has entered into numerous sponsorships and partnerships, further expanding its recognition worldwide, including:

a. In April 2015, following the Obama administration’s easing of restrictions on U.S. businesses operations in Cuba, expanding to Cuba, one of the first U.S. companies to do so.

b. In June 2015, sponsoring the Manor F1 Team.

c. In August 2015, partnering with Tesla Motors to provide chargers at certain host houses.

d. Being an “official supporter” of the 2018 Winter Olympic Games in PyeongChang.

e. Being the official “alternative accommodations” service for the 2016 Olympics in Brazil, featuring over 66,000 guest arrivals for the event.

f. Distributing a much-discussed and well-received commercial during the 2017 Super Bowl, which had an estimated 111.3 million viewers, according to Nielsen.

Complainant asserts it has more than 16.2 million followers on Facebook, 714,000 followers on Twitter, 4.7 million followers on Instagram, and numerous others on Pinterest, WeChat, and Weibo.

Complainant submits it is the owner of the service mark and trade mark AIRBNB, the trade name AIRBNB, and the domain names <airbnb.com> and <airbnb.com.au>, among others and in continuous use since at least as early as March 4, 2009, and has become one of the most recognized brands in the world. Complainant contends that its well-known and famous AIRBNB Mark is protected in countries around the world including a number of Australian trade mark registrations.

Complainant argues the disputed domain name is identical or confusingly similar to a name, trademark, or service mark in which Complainant has rights and that Respondent registered the Disputed Domain Name on October 19, 2019, well after Complainant’s Mark became known worldwide and well after Complainant registered its AIRBNB Mark in Australia (and elsewhere). Complainant states that the Disputed Domain Name incorporates the entirety of Complainant’s Mark and adds the generic or descriptive acronym “IPO,” which commonly refers to an initial public offering (of securities) so that the Disputed Domain Name therefore is identical or confusingly similar to Complainant’s Mark, and as such, is likely to confuse consumers as to its connection with Complainant. Complainant argues that when a domain name wholly incorporates a complainant’s registered mark, that is sufficient to establish identity or confusing similarity for purposes of the Policy, and that the addition of the generic or descriptive acronym “IPO” to the Disputed Domain Name does nothing to differentiate that domain name from Complainant or the services that Complainant renders under its AIRBNB mark. Complainant contends that coupling Complainant’s Mark with “IPO” falsely implies that Respondent is either Complainant itself or affiliated with Complainant, most likely as its financial adviser. Complainant argues that the inclusion of a generic Top-Level Domain (“gTLD”) or Second-Level Domain (“2LD”) (such as “.com.au”) also does not distinguish the Disputed Domain Name from a mark, submitting that this view has also been adopted in numerous panel decisions under the auDRP with respect to 2LD elements of a domain name, such as “.com.au”.

Complainant contends that AIRBNB is a well-known, distinctive, and strong mark and that this fame, distinctiveness, and strength only serves to increase the likelihood of confusion between the AIRBNB Mark and the Disputed Domain Name. Complainant alleges that Respondent used the Disputed Domain Name to host a website purporting to market Complainant’s (non-existent) initial public offering of stock in AIRBNB, which was nothing but a ruse Respondent used to phish for investors’ personal information and to promote its own online trading services and calculated to deceive Complainant’s users into thinking, falsely, that Respondent either is Complainant or is affiliated or connected with, or endorsed or approved by, Complainant. Complainant argues that the very small “disclaimer” on the bottom of the landing webpage (after significant scroll-down) is completely inadequate and insufficient to dispel the above misrepresentation and likelihood of deception and confusion. Complainant contends that Complainant’s clear rights to the AIRBNB Mark and the public’s overwhelming association of Complainant’s Mark with AIRBNB, meant Respondent’s registration and use of the Disputed Domain Name was, and is likely to cause, consumer confusion and accordingly, the Disputed Domain Name is identical or confusingly similar to Complainant’s Mark.

Complainant submits that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name and that the primary factors the panel considers when evaluating whether a Respondent has rights or legitimate interests in the domain name at issue are: (1) whether a Respondent previously used the domain name in connection with the bona fide offering of goods or services; (2) whether a Respondent has been commonly known by the domain name; and, (3) whether a Respondent is making a legitimate noncommercial or fair use of the domain name. Complainant argues that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden shifts to Respondent to rebut Complainant’s contentions and if Respondent fails to do so, Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.

Complainant says that in addition to the AIRBNB Mark, Complainant uses a variety of trade marks and other source identifiers to distinguish its unique goods and services, iincluding but not limited to, the Bélo logo, the subject of a number of Australian trademark registrations and used in combination with the AIRBNB Mark. Complainant contends that Respondent has neither any rights nor legitimate interests in the Disputed Domain Name, and Respondent is not using, and, on the Complainant’s information and belief, has never used, the Disputed Domain Name in connection with the bona fide offering of goods or services.

Complainant notes that Respondent appears to be a wholly-owned subsidiary of Registrant organization, an international financial firm providing on-line trading services in contracts for difference (CFDs), however, in response to a Cease and Desist Letter sent to the Registrant organization, the Registrant organization sent a reply dated December 12, 2019, indicating that it was never aware of, and had nothing to do with, the registration of the Disputed Domain Name and offered to assist the Complainant. Accordingly, the Registrant organization of the Disputed Domain Name was not even aware of its name being used to register that domain name. Accordingly, Respondent, whom appears to have fraudulently used the Registrant organization’s name, has no legitimate rights or interests in the Disputed Domain Name.

Complainant says it has not authorised Respondent to use its marks or brand elements or to act as its agent for any purpose, and that considering the overall look and feel of Respondent’s website, including the Respondent’s prominent display of Complainant’s Bélo logo and AIRBNB mark, Internet users easily could be confused whether the Respondent’s website is affiliated with or has the endorsement or sponsorship of Complainant, so that Respondent is clearly not making a fair or nominative use of Complainant’s marks. Complainant submits that this conduct by Respondent is even more nefarious given that the Disputed Domain Name appears to have been fraudulently registered with false information. Complainant contends that nothing in Respondent’s WhoIs information or the record demonstrates that Respondent is commonly known by the Disputed Domain Name, arguing that where a response is lacking, WhoIs information can support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged and was not lifted despite the commencement of proceedings. Complainant also contends that Respondent cannot be commonly known by the Disputed Domain Name because Complainant has not authorised Respondent to use its AIRBNB Mark, and indeed, there is no registered Australian entity (company name, business name) or trade mark for “Stockmarket Insider” referred to on the website published on the Disputed Domain Name.

Complainant contends that the fact that AIRBNB is an internationally well-known mark and name further establishes that Respondent cannot be known by the Disputed Domain Name since the worldwide fame of Complainant’s marks permit a finding that anyone other than Complainant could not be commonly known as AIRBNB and that Respondent could therefore not have shown that it was commonly known by the disputed domain name. Complainant argues that Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name, but instead has used it to induce visitors to (at least) provide their personal information in the hope of becoming part of the “Airbnb IPO”, and this use is clearly illegitimate as Respondent appears to be using the Disputed Domain Name to engage in, at least, phishing personal information by harvesting names, emails and phone numbers under a false pretext, and in doing so not only has Respondent appropriated the well-known trade mark of Complainant, it appears to have also appropriated the identity of another company. Complainant contends that previous panels have categorically held that the use of a domain name for illegal activity (e.g., phishing, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent. Complainant submits that in addition, the Disputed Domain Name is being used to redirect Internet users searching for Complainant to promote the Respondent’s services (or the services of the actual party that has registered the Disputed Domain Name), including its on-line trading services but also possibly for other nefarious purposes.

Complainant argues that Respondent’s illegitimate interest is established by: (a) its registration and use of the Disputed Domain Name, which wholly incorporates Complainant’s Mark; (b) its blatant copying of Complainant’s brand elements, including the AIRBNB Mark, and the Bélo Logo; and, (c) its use of the Disputed Domain Name to divert Complainant’s customers to Respondent for its financial or other personal gain, and that Respondent clearly registered the Disputed Domain Name with Complainant’s Mark in mind and with the intention of diverting communications intended for Complainant. Complainant argues that this use is neither legitimate nor fair.

Complainant contends that the disputed domain name was registered or is subsequently being used in bad faith, noting that Respondent registered the Disputed Domain Name with Complainant’s Mark in mind and with intent to cause confusion. Complainant states that Complainant first made use of its Mark in the U.S. at least as early as March 4, 2009, while Respondent did not register the Disputed Domain Name until more than 10 years later, on October 19, 2019, well after consumers worldwide had (according to Complainant) come to recognise Complainant’s Mark and rely upon that mark to identify and distinguish Complainant’s website and services from the goods and services of others. Complainant also argues that, given Complainant’s registration of the AIRBNB Mark and its use in association with the services among so many people around the world, Respondent’s use of Complainant’s Mark as part of the Disputed Domain Name, which clearly associates the disputed domain name with Complainant’s services, makes it perfectly clear that Respondent had actual knowledge of Complainant’s rights in and to the AIRBNB Mark before registering the Disputed Domain Name, and that in light of the Disputed Domain Name’s overt inclusion of Complainant’s well-known mark, it appears that Respondent’s intent in registering and using the Disputed Domain Name was to capitalize on the goodwill associated with the AIRBNB Mark, rather than for some benign reason, and this is further evidence of bad faith.

Complainant contends it is very clear that Respondent had actual knowledge of the Complainant’s rights as evidenced by the attempted “disclaimer” on the website published on the Disputed Domain Name and the words of the Respondent in an email to Complainant’s lawyers on December 16, 2019, stating that: “We may be using the hype around the coming Airbnb IPO to gain subscribers as we are affiliate markets of companies like ….”, being (according to Complainant) a clear admission that the Disputed Domain Name has been registered and is being used in bad faith in an obvious attempt to attract Internet users for commercial gain by creating a likelihood of confusion. Complainant asserts that the likelihood of confusion is not diminished by the possibility that the user will discover, upon arriving at Respondent’s website, that the website reached is not the website it was seeking.

Complainant contends that Respondent engages in a fictitious initial public offering which constitutes a phishing scheme and use of the Disputed Domain Name to engage in a phishing scheme for Internet users’ personal information may be evidence of bad faith. Complainant says that in the email correspondence with Complainant’s lawyers, Respondent repeatedly agreed to transfer the Disputed Domain Name and cease unauthorised use of the AIRBNB Mark and Bélo Logo but continued to fail to do so, clearly demonstrating registration and/or use in bad faith. Complainant also alleges that Respondent selected the Disputed Domain Name, which incorporates Complainant’s AIRBNB mark, so Respondent could: (a) deceive visitors to its website into believing that Respondent is either Airbnb or is affiliated with or retained by Airbnb ; (b) convince those investors to provide Respondent with their personal information; (c) offer to those investors the opportunity to participate in Airbnb’s fictitious initial public offering; and, (d) promote Respondent’s online trading services, and this use of a disputed domain name for the purpose of defrauding Internet users by the operation of a “phishing” website is perhaps the clearest evidence of registration and use of a domain name in bad faith and the fact that the website is currently inactive does not negate such a finding.

Complainant concludes by contending that, based on the facts and circumstances enumerated by Complainant in the Complaint, it is clear that Respondent (i) registered and/or used the Disputed Domain Name in bad faith and in violation of the Policy, (ii) registered a domain name that incorporates Complainant’s Mark in its entirety, (iii) has no legitimate interest in the Disputed Domain Name; and, (iv) was or is, using the Disputed Domain Name to engage in impersonation, phishing and misdirection “for its person” [sic], thus demonstrating that Respondent is merely trading off of Complainant’s AIRBNB Mark and reputation for its own commercial gain.

B. Respondent

The Respondent did not file any response to the Complaint.

However, prior to commencement of these administrative proceedings, between December 16, 2019 and January 2, 2020, the Respondent corresponded with the Complainant’s representatives stating, amongst other things, that:

“… We are not pretending to be affiliated with Airbnb, and we state that very clearly. Also, the accusation that we are a scam or phishing scam is an insult and merely incorrect. You can see this text at the button [sic] of the landing page. We may be using the hype around the coming Airbnb IPO to gain subscribers as we are affiliate markets of companies like https://sharespost.com/airbnb stock/, https://equityzen.com/path-to-ipo/airbnb/. You can see other companies that are doing the same thing as us.... https://www.hl.co.uk/free-guides/airbnbipo-alerts. Stockmarket Insider does not have an affiliation with, formal relationship with, or endorsement from Airbnb or any companies featured above. This profile is based on publicly available information and is intended to be informative in nature. Stockmarket Insider and logo are trademarks of Stockmarket Insider. Other trademarks are the property of their respective owners. Please tell me what the problem is? The domain you can have. We didn’t think there was a legal issue the domain contains our keywords. The logos why must we remove them Airbnb offers them https://news.airbnb.com/media-assets. I will remove any content Airbnb likes but please tell us how we can continue to operate our landing pages in a way that Airbnb is okay with. I want to understand why Airbnb has a problem with us and not other landing pages and media websites using the exact same content? …”

“… You know I’m just reading what you said again, and if you read our website carefully, we are offering information, and in fact, that is precisely what we give in exchange for there information. This is all clear on our website. … What’s the keyword being used there? Investor fact sheet? Are you not allowed to offer information? So please let us keep this casual because any legal dispute isn’t going anywhere. I want to know what the significant issues are the domain I get that ill [sic] take it down now. The logos I would like to understand why we can’t use them but others can. …”

6. Discussion and Findings

Since the Complainant has asserted to the WIPO Center (the “applicable Provider”) in compliance with the Rules, that:

(i) the disputed domain name is identical or confusingly similar to a name, trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) the disputed domain name has been registered or subsequently used in bad faith,

the Respondent is required, in accordance with Paragraph 4.a, Schedule A of auDRP to submit to this mandatory administrative proceeding.

The Panel notes that no Response to the Complaint has been received. Paragraph 5.3 of the auDRP provides that: “The Respondent is not obliged to file a Response. If no Response is received, unless there are exceptional circumstances, the Panel shall decide the dispute based on the information provided in the Complaint.” There being no exceptional circumstances, the Panel proceeds to decide the dispute based on the information provided in the Complaint.

A. Identical or Confusingly Similar

The disputed domain name <airbnb-ipo.com.au> is a hyphenated name made up of one part which has identical spelling to the Complainant’s trademark AIRBNB, and a second part “-ipo” which appears to be an abbreviation of “initial public offering”. In the absence of any Response, the Panel accepts that “ipo” refers to “initial public offering” and it is noted that the Respondent’s Contact appears to agree with this in his emails to the Complainant between December 16, 2019 and January 2, 2020. Since the name “Airbnb” is the dominant part of the disputed domain name and appears to have no dictionary meaning, it is likely the great similarity between the disputed domain name and the Complainant’s registered trademarks (notably in Australia), will confuse an Internet user into believing it is somehow associated with the Complainant. The Panel therefore finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The addition of the 2LD “.com.au” does not affect this finding.

B. Rights or Legitimate Interests

The Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent provides no Response. It is noted that the organization listed in the WhoIs information for the disputed domain name as the Registrant’s organization is the company [organization redacted], which specifically states in correspondence with the Complainant that the organization “…has never registered, nor was it aware that someone registered this domain using its name without any authorization. …No representative of [organization redacted] was ever authorized to register this domain and [organization redacted] cannot be held responsible for any of its actions. …”. This suggests that the organization is not asserting it has any rights or legitimate interests in respect of the disputed domain name. It appears also, that the true holder of the disputed domain name is the Respondent, apparently named “Adam Price”, who is the true registrant and who has communicated with the Complainant’s lawyers with regard to the disputed domain name.

In emails to the Complainant from the Respondent between December 16, 2019, and January 2, 2020, it is stated by the Respondent that: “… We are not pretending to be affiliated with Airbnb, and we state that very clearly. … We may be using the hype around the coming Airbnb IPO to gain subscribers as we are affiliate markets of companies like … Stockmarket Insider does not have an affiliation with, formal relationship with, or endorsement from Airbnb or any companies featured above. … Stockmarket Insider and logo are trademarks of Stockmarket Insider. Other trademarks are the property of their respective owners. …”. This appears to be an argument that the Respondent has rights or legitimate interests in respect of the disputed domain name because he wishes to use the disputed domain name while the hype continues around an expected IPO for AIRBNB, in order to gain subscribers for the commercial advantage of the Respondent.

The Complainant submits that that Respondent has never been commonly known by the disputed domain name, and that the Complainant has not authorised the Respondent to use the Complainant’s trademarks or brand elements or to act as its agent for any purpose. The Respondent has not answered these submissions of the Complainant.

The webpage to which the disputed domain name resolved includes a prominent display of the Complainant’s AIRBNB mark and the Bélo logo, the subject of a number of Australian trademark registrations by the Complainant and used by the Complainant in combination with the AIRBNB Mark. Despite the disclaimer near the end of the webpage in comparatively small lettering, the overall look and feel of the webpage suggests to an Internet user that the webpage is that of the Complainant and an Internet user would likely be misled that the disputed domain name (because of the dominant use of “Airbnb” in the name) is associated with the Complainant and the webpage to which it resolves would reinforce this misconception. The Panel accepts that this would remain the case even with the disclaimer in small lettering near the end of the webpage. The misconception could not be corrected until the Internet user has entered and read the relevant webpage for some time, would have had to scroll down to near the end of the webpage to find the correcting message, and could easily have missed the message in small lettering. In the Panel’s view, the message indicating that the webpage is not connected to the Complainant is not sufficient to rebut the overall impression of an Internet user that the disputed domain name is associated with the Complainant thereby misleadingly diverting consumers to the webpage at the disputed domain name.

The use of the disputed domain name is admitted by the Respondent to be “to gain subscribers” for marketing of a prospective IPO stock sale, so it cannot be said that the Respondent is making a use of the disputed domain name without intent for commercial gain, since such use is clearly done to divert potential new subscribers to the webpage for commercial gain within the meaning of paragraph 4.c.(iii) Schedule A of auDRP. The Panel accepts that the Respondent has unfairly used the disputed domain name with the intent for commercial gain to misleadingly divert consumers from the Complainant’s websites to the webpage associated with the disputed domain name.

Further, the fact that the Registrant organization has never registered and nor was it aware that someone registered the disputed domain using its name without any authorization, establishes that the Respondent has done so without the consent of the Registrant organization. Such conduct indicates that the disputed domain name was registered by the Respondent to engage in conduct that was likely to be regarded as illegitimate or nefarious (as alleged in the Complaint) or at least to use it to misleadingly divert new customers to the services offered at the webpage associated with the disputed domain name.

The Respondent does not contest the Complainant’s assertion that there is no registered Australian entity (company name, business name) or trade mark for “Stockmarket Insider” which is the entity referred to on the website associated with the disputed domain name. It also clear that the name of the Respondent, Adam Price, has no similarity to the disputed domain name and indeed, the Registrant organization does not assert it has any rights or legitimate interests in the disputed domain name, noting that it has never authorized registration of the disputed domain name.

After taking account of all of the above, and in the absence of any Response to the Complainant’s allegations or any credible evidence of rights or legitimate interest, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the disputed domain name.

C. Registered or Subsequently Used in Bad Faith

The Registrant organization, in a letter to the Complainant via email dated December 12, 2019, stated that:

“… [organization redacted] has never registered, nor was it aware that someone registered this domain using its name without any authorization. The first time this was brought to our attention was [via] your letter. No representative of [organization redacted] was ever authorized to register this domain and [organization redacted] cannot be held responsible for any of its actions. …”

In email correspondence between December 16, 2019, and January 2, 2020, the Respondent acts as if he is a representative of the Registrant’s organization when clearly the Registrant’s organization was not aware of registration of the disputed domain name in its’ name. It is apparent that the Respondent has falsely used the name and address of the Registrant’s organization to register the disputed domain name, as alleged by the Complainant. The Respondent does not deny this allegation and the evidence indicates this to be the case. The Panel finds that the Respondent has falsely used the name and address of the Registrant’s organization to register the disputed domain name. The use of false registration information, including unauthorized use of the name and details of a registered company in Australia, would in itself be sufficient to find the disputed domain name has been registered in bad faith, including (amongst other reasons) because such conduct deceives the Registrar and other Internet users of the real identity of the Registrant.

In addition, by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, new subscribers for services offered at the webpage associated with the disputed domain name. He has done this by creating a likelihood of confusion with the Complainant’s Mark as to the sponsorship, affiliation or endorsement of (a) the website associated with the disputed domain name, and/or (b) the services offered on the website. Such use is evidence of registration and use of the disputed domain name in bad faith (see paragraph 4.b.(iv) Schedule A of auDRP). The Respondent has created a likelihood of confusion with the Complainant’s Mark, by using almost exact copies of the Complainant’s Mark and Logo on the associated webpage, that is likely to confuse an Internet user that the webpage and the subscription services offered at the webpage, are sponsored, affiliated or endorsed by the Complainant. The Panel recognises that this remains the case even with the disclaimer in small lettering near the end of the webpage. The likelihood of confusion could not be corrected until the Internet user has entered and scrolled down to near the end of the webpage to find the correcting message, and an internet user could easily miss the message in such small lettering. In the Panel’s view, the message indicating that the webpage is not connected to the Complainant is not sufficient to overcome the likelihood of confusion with the Complainant’s Mark as to the sponsorship, affiliation or endorsement by the Complainant of the website and/or the products being offered on the website. In view of the above, the Panel finds there is evidence of registration and use in bad faith of the disputed domain name.

It is also clear the Respondent registered the disputed domain name more than eight years after the AIRBNB trademark was first registered in Australia, so the Respondent should have been aware of the Complainant’s trademark rights in AIRBNB (which forms a dominant part of the disputed domain name) and appears prominently on numerous occasions on the website associated with the disputed domain name. Further, the Respondent stated in an email to the Complainant’s lawyers that: “We may be using the hype around the coming Airbnb IPO to gain subscribers as we are affiliate markets of companies like ….”. These matters indicate it is most likely that before the disputed domain name had been registered, the Respondent knew that the Complainant had rights in the AIRBNB Mark. These matters also support the Complainant’s assertion that the Respondent’s intent in registering and using the disputed domain name was to capitalize on the goodwill associated with the AIRBNB Mark. There is no Response to these matters and assertions, and in that case the Panel accepts them and concludes that they also amount to evidence of bad faith.

In view of all of the above, the Panel finds that the disputed domain name has been registered or subsequently used in bad faith.

7. Decision

For all the foregoing reasons, in accordance with Paragraph 4(i), Schedule A of auDRP and Paragraph 15 of the Rules, the Panel orders that the disputed domain name <airbnb-ipo.com.au> be transferred to the Complainant (provided that the Complainant is otherwise eligible to hold the domain name <airbnb-ipo.com.au>).

Frank Schoneveld
Sole Panelist
Date: March 11, 2020

¹ Based on the case file, it appears that the true holder and registrant of the disputed domain name used information belonging to another entity when registering the disputed domain name. In light of a potential risk of identity theft, the Panel, therefore, has redacted the Respondent’s organization from this Decision. However, the Panel has attached as Annex 1 to this Decision an instruction to the Registrar regarding transfer of the disputed domain name, which includes the name of the registrant according to the Registrar’s WhoIs database. The Panel has authorized the Center to transmit Annex 1 to the Registrar as part of the Decision in this proceeding and has indicated that Annex 1 to this Decision shall not be published due to the exceptional circumstances of this case within the meaning of paragraph 4.j. Schedule A of the auDRP.