WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Fareportal Inc. v. SUN Lingmin

Case No. DCO2016-0011

1. The Parties

The Complainant is Fareportal Inc. of New York, New York, United States of America ("United States"), represented by Cowan, DeBaets, Abrahams & Sheppard, LLP, United States.

The Respondent is SUN Lingmin of Xu Chang, China.

2. The Domain Name and Registrar

The disputed domain name <cheapoair.co> is registered with Web Commerce Communications Limited dba WebNic.cc (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 9, 2016. On March 9, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 11, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 15, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 15, 2016.

The Center verified that the Complaint together with the amended 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 March 16, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 5, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 6, 2016.

The Center appointed Rodrigo Azevedo as the sole panelist in this matter on April 11, 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 technology company that develops computer software used to power travel-related websites, including the Internet-based travel agency "www.cheapoair.com". Through this and other websites, the Complainant offers travel-related services including airfare, temporary lodging, car rentals, and vacation packages.

For nearly the past decade, the Complainant has provided its travel-related services to the public using the CHEAPOAIR trademark. The CHEAPOAIR trademark, with a date of first use in commerce of July 1, 2005, is registered with the United States Patent and Trademark Office.

The disputed domain name was registered on July 20, 2010.

The Panel accessed the website at disputed domain name on April 25, 2016, when the disputed domain name was redirecting to the "www.booking.com" website.

5. Parties' Contentions

A. Complainant

The Complainant makes the following contentions:

- The disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The disputed domain name incorporates the entirety of the CHEAPOAIR marks. The addition of the country code ".co" to the disputed domain name "does not affect the confusing similarity or identity between the domain name and the trade mark(s) in issue," a principle "clearly established from the beginning of the UDRP process" (see Philipp Plein v. Ryan Talbo, WIPO Case No. DCO2016-0002). Moreover, courts and administrative panels have recognized that consumers expect to find a trademark owner on the Internet at a domain name address composed of the company's name or mark. Having arrived at a competing website, Internet users would be confused as to whether they had reached the Complainant's official website or whether the website is in any way endorsed, sponsored, affiliated or associated with the Complainant.

- The Respondent has no rights or legitimate interests in respect of the disputed domain name. 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 purpose. The CHEAPOAIR marks belong exclusively to the Complainant. The Respondent is not a licensee of the Complainant, nor has Respondent obtained any permission, either express or implied, from the Complainant to use the CHEAPOAIR marks, or any domain name incorporating such marks, either at the time 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 or legitimate business under the disputed domain name, and the Respondent is not making a protected noncommercial or fair use of the disputed domain name. By incorporating the Complainant's registered trademarks into its URL, the Respondent uses the disputed domain name to misdirect Internet users seeking the Complainant's travel-related services to competing websites.

- The disputed domain name was registered and is being used in bad faith. The Respondent could not plausibly assert that, in registering the disputed domain name, it was unaware of the Complainant's rights in the CHEAPOAIR marks. The Respondent is also deemed to have constructive knowledge of the Complainant's trademark rights by virtue of the Complainant's federal registration for the CHEAPOAIR marks. Moreover, the Respondent's registration of a domain name that is confusingly similar or identical to the Complainant's CHEAPOAIR marks in order to misdirect Internet users to competing websites is evidence of bad faith under the Policy. While use of a privacy service does not in and of itself constitute bad faith under the Policy, the manner in which such service is used may contribute to a finding of bad faith. Additionally, it is well settled among numerous Panelists that the Respondent's very method of infringement – using the exact CHEAPOAIR marks to misdirect consumers to the competing websites – demonstrates bad faith use under the Policy. Also, the travel-related services offered through competing websites appear to be similar to the travel-related services offered through the Complainant's website, supporting the inference that the Respondent has intentionally used the disputed domain name to attract Internet users by creating a likelihood of confusion with the Complainant's marks. It is reasonable to infer that the Respondent receives some type of financial benefit in misdirecting Internet users to competing websites. The Respondent's actions will damage the CHEAPOAIR marks and the Complainant's assets. The disputed domain name is so "obviously indicative" of the Complainant's services that the Respondent's use of this domain name would, at a minimum, "inevitably lead to confusion of some sort" (see AT&T v. Fred Rice, WIPO Case No. D2000 1276), to the severe detriment of the Complainant and its goodwill.

B. Respondent

The Respondent did not reply to the Complainant's contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of the disputed domain name, a complainant shall prove the following three elements:

(i) The disputed domain name is identical or confusingly similar to a 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 and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel has no doubt that "cheapoair" is a term directly connected with the Complainant's travel-related services.

Exhibit B to the Complaint shows that the Complainant owns trademark registrations in the term "cheapoair" in the United States, which has been used in commerce since July 1, 2005.

The trademark CHEAPOAIR is wholly encompassed within the disputed domain name.

The disputed domain name differs from the Complainant's trademark by the addition of the country-code Top-Level Domain ("ccTLD") ".co". It is well established in decisions under the UDRP that generic Top-Level Domain or ccTLD indicators may be considered irrelevant in assessing confusing similarity between a trademark and a disputed domain name.

As a result, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark, and that the Complainant has satisfied the first element of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides some examples, without limitation, of how a respondent can demonstrate a right or legitimate interest in a domain name:

(i) before receiving any notice of the dispute, the respondent used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent has been commonly known by the disputed domain name; or

(iii) the 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 at issue.

Based on the unrebutted prima facie case established by the Complainant, the Panel finds that the above circumstances are not present in this particular case and that the Respondent has no rights or legitimate interests in the disputed domain name.

The Complainant has not licensed nor authorized the use of its trademark to the Respondent, and the Panel finds no indication that the Respondent is commonly known by the disputed domain name.

Furthermore, the present record provides no evidence to demonstrate the Respondent's use of or demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services.

Consequently, the Panel is satisfied that the Respondent has no rights or legitimate interests in the disputed domain name, and the Complainant has proven the second element of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states that the following circumstances in particular, but without limitation, shall be evidence of registration and use of a domain name in bad faith:

(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent registered the 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 the respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location.

When the disputed domain name was registered by the Respondent (in 2010), the trademark CHEAPOAIR was already directly connected to the Complainant's travel-related online services.

The disputed domain name encompasses the trademark CHEAPOAIR, together with the ccTLD ".co".

Therefore, the Panel concludes that it would not be plausible to consider that the Respondent – at the time of the registration of the disputed domain name – was not aware of the Complainant's trademark, or that the adoption of the term "cheapoair" within the disputed domain name was a mere coincidence.

Furthermore, the disputed domain name redirects the Internet user to websites offering competing services, such as "www.trivago.com" and "www.booking.com". In doing so, the Respondent:

(i) creates a likelihood of confusion with the Complainant's trademark;

(ii) potentially obtains revenue from this practice; and

(iii) deprives the Complainant from selling its services to prospective clients who are clearly looking for the Complainant.

The non-collaborative posture of the Respondent, not providing justifications for the use of a third party internationally recognized trademark, certainly cannot be used in benefit of the Respondent in this Panel's opinion.

Such circumstances, including the lack of any plausible good faith reason for the adoption of the term "cheapoair" by the Respondent and the Respondent's use of a privacy service to mask its identity are enough in this Panel's view to characterize bad faith registration and use in the present case.

Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith, and the Complainant has also satisfied the third element of the Policy.

7. Decision

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 <cheapoair.co> be transferred to the Complainant.

Rodrigo Azevedo
Sole Panelist
Date: April 25, 2016