Administrative panel decision trivago GmbH V. Jan Janssen



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ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

Trivago GmbH v. Jan Janssen

Case No. D2014-1437



1. The Parties

The Complainant is Trivago GmbH of Düsseldorf, Germany, represented internally.


The Respondent is Jan Janssen of Amsterdam, the Netherlands.


2. The Domain Name and Registrar

The disputed domain name is registered with Tucows Inc. (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 21, 2014. On August 21, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 21, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on August 26, 2014.


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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 4, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 24, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 25, 2014.
On September 26, 2014, the Center received a Supplemental Filing from the Complainant. On the same date, the Center acknowledged its receipt and informed the parties that it would be brought to the Panel’s attention upon appointment. On September 27, 2014, the Center received an email communication from the Respondent. The Center acknowledged its receipt, and informed the parties that the email communication would be forward to the Panel, once appointed, who would have the discretion to accept or reject it.
The Center appointed Alistair Payne as the sole panelist in this matter on October 1, 2014. 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 operates a website at “www.trivago.com” which is a worldwide hotel price comparison and booking website. It owns International Trade mark Registration No. 910828 for the TRIVAGO word mark dating from 2006 which has been registered in various countries including as a Benelux trade mark registration.


The Respondent registered the disputed domain name on October 24, 2013.



5. Parties’ Contentions

A. Complainant

The Complainant submits that it owns registered trade mark rights as noted above for its TRIVAGO word mark and that the disputed domain name only differs from its mark by one letter, namely by substitution of the letter “G” for the letter “B”. It says that as a result the disputed domain name is confusingly similar to its trade mark and that this is a classic case of typosquatting.


It says that it has not authorised the Respondent’s use of its TRIVAGO mark and that it is not affiliated with the Respondent. The Complainant further submits that it has found no evidence that the Respondent owns a trade mark registration for its mark in its home country, or that it is making a bona fide or noncommercial use of the disputed domain name. On the contrary, says the Complainant, the Respondent is using it to resolve to a site on which hotel bookings are made and which competes with the Complainant’s website. In addition, submits the Complainant, it is impossible to identify the Respondent from its website or to find its contact address. This all points, according to the Complainant, to the Respondent having no rights or legitimate interests in the disputed domain name.
As far as bad faith is concerned, the Complainant submits that the disputed domain name was registered some 8 years after the Complainant’s trade mark registration. It says that the TRIVAGO mark has no dictionary meaning and is a coined and unusual term. The disputed domain name was chosen long after the registration and use of the Complainant’s mark for its hotel price comparison and booking site and it is highly unlikely that the Respondent selected it without knowledge of the Complainant’s mark and business.
In circumstances that the website to which the disputed domain name resolves provides identical services to those provided by the Complainant and is only one letter different from the Complainant’s trade mark, and that Internet users arriving at the Respondent’s website could easily be confused into thinking that they were at the Complainant’s website, the Complainant submits that the Respondent has registered and is using the disputed domain name to intentionally attempt to attract Internet users for commercial gain to its website in terms of paragraph 4(b)(iv) of the Policy.

B. Respondent

The Respondent did not file a formal Response.




6. Discussion and Findings



A. Procedural Issue: Late Filings
The Complainant made a late filing by email on September 26, 2014 concerning a response received from the Respondent to its earlier offer to purchase the disputed domain name. The Respondent also made a late filing by email on September 27, 2014. There was no apparent explanation for the lateness of the Respondent’s filing and in any event it adds nothing to the Respondent’s case. In the absence of exceptional circumstances, the Panel is not inclined to accept this filing into the record, and in the interests of equity will also exercise its discretion on this occasion not to accept the Complainant’s late filing into the record.
B. Substantive Elements of the Policy

(i). Identical or Confusingly Similar

The Panel finds that the Complainant owns registered trade mark rights for its TRIVAGO word mark as noted above. The Panel notes that the Complainant’s mark is not a word in the English language and appears to be a coined term. The disputed domain name differs from the Complainant’s mark by only one letter and particularly considering the unique nature of the TRIVAGO mark the Panel has no difficulty in finding that the disputed domain name is confusingly similar to it. As a result, the Complaint succeeds under the first element of the Policy.



(ii). Rights or Legitimate Interests

The Complainant asserts that it has no affiliation with the Respondent and has not authorised it to use its distinctive TRIVAGO mark. It says that it is unaware of the Respondent owning any trade mark rights for a TRIBAGO mark and that there is no evidence that the Respondent is making a bona fide or legitimate noncommercial use of the disputed domain name. The Complainant notes in this regard that there are no contact details for the Respondent on its website and it is not clear from the site who it is that is providing services from the Respondent’s website.


On this basis and also for the reasons set out under the bad faith section below, the Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and that there is no evidence before the Panel to rebut the Complainant’s case. As a result the Panel finds that the Complaint succeeds under the second element of the Policy.

(iii). Registered and Used in Bad Faith

The disputed domain name was registered in late 2013 many years after the Complainant’s initial registration of its TRIVAGO mark. As noted above, the Panel finds that the TRIVAGO mark is a coined term and is highly distinctive. In circumstances that the Complainant has made substantial use of it in connection with its hotel comparison and booking site, and that the Respondent many years later set up its own site at the disputed domain name in order to provide essentially the same services, the Panel infers that it is more than likely that the Respondent was fully aware of the Complainant’s mark and the services it offers when it registered the disputed domain name.


The disputed domain name differs by only one letter from the Complainant’s mark and the website to which it resolves is also aimed at selling hotel bookings online. It appears to the Panel that this is a case of typosquatting which was recognized by UDRP panels very early on as being evidence in and of itself of registration in bad faith (for example see Paragon Gifts, Inc. v. Domain.Contact, WIPO Case No. D2004-0107 (citing National Association of Professional Baseball Leagues, d/b/a Minor League Baseball v. Zuccarini, WIPO Case No. D2002-1011); ESPN, Inc. v. XC2, WIPO Case No. D2005-0444.
Overall the Respondent’s site appears to be quite similar to the Complainant’s site at “www.trivago.com” and offers almost identical hotel price and comparison services. The Panel has no difficulty in finding that the Respondent has sought intentionally to use the disputed domain name to confuse Internet users into thinking that the Respondent’s site is, or is related to the Complainant’s site, in order to attract Internet traffic to its own website for commercial gain in terms of paragraph 4(b)(iv) of the Policy. The Panel’s inference of the Respondent’s use of the disputed domain name in bad faith and lack of bona fide is only reinforced by its apparent lack of information as to how to contact the Respondent, or indeed as to who the Respondent actually is, on the website at the disputed domain name.
For these reasons, the Panel finds that the disputed domain name was both registered and is being used in bad faith and that the Complaint succeeds under 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 be transferred to the Complainant.



Alistair Payne

Sole Panelist



Date: October 5, 2014



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