WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Cleartrip Private Limited v. Ali Bina

Case No. DIR2016-0041

1. The Parties

The Complainant is Cleartrip Private Limited of Mumbai, India, represented iBrandProtect, India.

The Respondent is Ali Bina of Tehran, Islamic Republic of Iran.

2. The Domain Name and Registrar

The disputed domain name <cleartrip.ir> (the “Disputed Domain Name”) is registered with IRNIC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 19, 2016. On December 19, 2016, the Center transmitted by email to IRNIC a request for registrar verification in connection with the Disputed Domain Name. On December 20, 2016, IRNIC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Hard copies of the Complaint were received by the Center on January 3, 2017.

The Center verified that the Complaint satisfied the formal requirements of the .ir Domain Name Dispute Resolution Policy (the “Policy” or “irDRP”), the Rules for .ir Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .ir 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 January 5, 2017. In accordance with the Rules, paragraph 5(a), the due date for Response was January 25, 2017. On January 26, 2017, the Center notified the Respondent’s default.

The Center appointed John Swinson as the sole panelist in this matter on February 3, 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

The Complainant is Cleartrip Private Limited. The Complainant provides an online travel platform through which customers worldwide can book flights and accommodation. This service has been provided from the Complainant’s website at “www.cleartrip.com” since 2005.

The Complainant owns a large number of registered trade marks for CLEARTRIP in a number of different jurisdictions, including Indian Registered Trade Mark numbers 1416199 and 1416200 for CLEARTRIP (stylized), both registered from January 24, 2006 (the “Trade Mark”).

The Respondent is Ali Bina, an individual of the Islamic Republic of Iran. The Respondent did not provide a response to the Complaint, so the Panel has little further information regarding the Respondent.

According to IRNIC, the Disputed Domain Name was registered on October 9, 2013. There is no active website associated with the Disputed Domain Name.

5. Parties’ Contentions

A. Complainant

The Complainant makes the following contentions.

Identical or Confusingly Similar

The Complainant has continuously marketed and provided its services under the Trade Mark since 2005. The only difference between the Trade Mark and the Disputed Domain Name is the country code Top-Level Domain (“ccTLD”). Previous panels have found that where the relevant domain name incorporates a trade mark in its entirety, this is sufficient to establish that the domain name is identical or confusingly similar to the trade mark.

Rights or Legitimate Interests

The Respondent has no rights or legitimate interests in the Disputed Domain Name for the following reasons:

- The Respondent is not commonly known by the Disputed Domain Name or the Trade Mark.

- The Complainant has not licensed or otherwise permitted the Respondent to use the Trade Mark or to register a domain name which incorporates the Trade Mark.

- There is no evidence that the Respondent has used the Disputed Domain Name in connection with a bona fide offering of goods or services.

- There is no evidence that the Respondent has made a bona fide noncommercial or fair use of the Disputed Domain Name.

- The Respondent has registered the Disputed Domain Name with the intention to trade off the Complainant’s goodwill and reputation.

Registered or Used in Bad Faith

The Trade Mark has acquired distinctiveness and is associated with the Complainant. Any use of the Trade Mark in the Disputed Domain Name must be in bad faith.

It is not possible that the Respondent was not aware of the Trade Mark prior to registering the Disputed Domain Name. The Respondent is attempting to gain financially from their use of the Disputed Domain Name.

The Respondent registered the Disputed Domain Name for the purpose of disrupting the business of the Complainant. The Respondent is passively holding the Disputed Domain Name to cause confusion to consumers. Consumers are likely to believe that the Respondent has a connection with the Complainant.

B. Respondent

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

6. Discussion and Findings

To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:

(i) the Disputed Domain Name is identical or confusingly similar to a trade mark 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 is being used in bad faith.

The onus of proving these elements remains on the Complainant even though the Respondent has not filed a response.

A. Procedural Issues

The Respondent’s failure to file a response does not automatically result in a decision in favor of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org, WIPO Case No. D2013-2059¹). However, the Panel may draw appropriate inferences from the Respondent’s default.

B. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.

The Disputed Domain Name is identical to the Trade Mark. It incorporates the Trade Mark in its entirety and no further words are added.

The Complainant succeeds on the first element of the Policy.

C. Rights or Legitimate Interests

Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.

The Panel finds that the Complainant has made out a prima facie case. This finding is based on the following:

- The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. There is currently no active website associated with the Disputed Domain Name. In the circumstances, this is not a bona fide use of the Disputed Domain Name under the Policy.

- The Panel accepts the Complainant’s submission that the Complainant has not licensed, authorized or otherwise given the Respondent permission to use the Disputed Domain Name.

- There is no evidence that the Respondent has been commonly known by the Disputed Domain Name, or has registered or common law trade mark rights in relation to this name.

- The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. Again, there is no content at the Disputed Domain Name, or other evidence before the Panel, which would suggest such use.

The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. In the absence of a response from the Respondent, the prima facie case established by the Complainant has not been rebutted.

In light of the above, the Complainant succeeds on the second element of the Policy.

D. Registered or Used in Bad Faith

Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered or used the Disputed Domain Name in bad faith.

The Complainant has been providing its travel services under the Trade Mark and at the domain name <cleartrip.com>, which incorporates the Trade Mark, since 2005. According to the Complaint, the Complainant and its website have won a number of awards over the years, and receive a large amount of Internet traffic on a daily basis. The Disputed Domain Name was registered on October 9, 2013.

Previous UDRP panels have found that where the reputation of a complainant in a given mark is significant and the mark has strong similarities to the disputed domain name, the likelihood of confusion is such that bad faith may be inferred (see, e.g., Verner Panton Design v. Fontana di Luce Corp, WIPO Case No. D2012-1909 and cases cited therein). Given that the Disputed Domain Name incorporates the Trade Mark in its entirety, with no additional words or letters, the Panel finds it highly unlikely that the Respondent was not aware of the Trade Mark at the time the Respondent registered the Disputed Domain Name.

As noted above there in no content at the Disputed Domain Name. Previous UDRP panels have found that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of “passive holding”.

Furthermore, this Panel finds that it is probable that the Respondent intended to divert traffic from the Complainant’s website to the Disputed Domain Name. This is particularly the case given that the Complainant’s official website is at the domain name <cleartrip.com>, which differs from the Disputed Domain Name only by the ccTLD “.ir”. In the circumstances, this also constitutes bad faith registration and use under paragraph 4(b)(iv) of the Policy.

In light of the above, and in the absence of a response and any evidence rebutting bad faith registration and use, the Panel finds that the Complainant has succeeded on 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 <cleartrip.ir> be transferred to the Complainant.

John Swinson
Sole Panelist
Date: February 17, 2017

¹ In light of the substantive and procedural similarities between the irDRP and the Uniform Domain Name Dispute Resolution Policy (“UDRP”), the Panel has cited authorities decided under the UDRP where appropriate.