Westmore · UDRP DecisionTrvlago.com
The Panel ordered transfer of <trvlago.com>. Although it considered an accidental mistyping of TRIVAGO into “trvlago” highly unlikely, it found confusing similarity based on the visual and phonetic resemblance of the signs, the coined and well-known TRIVAGO mark, and the Respondent website’s imitation of the Complainant’s presentation and services. The Complainant’s prima facie case on the absence of rights or legitimate interests was unrebutted, and use of the domain to divert traffic to a competing website for commercial gain established bad-faith registration and use under paragraph 4(b)(iv) of the Policy.
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The decision illustrates that rejection of a conventional typosquatting theory does not necessarily defeat confusing similarity. Here, the Panel treated the domain’s visual and phonetic resemblance to a coined mark, together with the imitative and competing website, as sufficient to establish confusion. The same website conduct also supported the absence of legitimate interests and bad faith based on commercial diversion.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION trivago GmbH v. Nomads/Perminder (David) Marin-Pache Case No. D2014-0542 1. The Parties The Complainant is trivago GmbH of Düsseldorf, Germany, represented by Patricia Frechen, Germany. The Respondent is Nomads/Perminder (David) Marin-Pache of Milton Keynes, Buckinghamshire, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar The disputed domain name <trvlago.com> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 3, 2014. On April 3, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 3, 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. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 9, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 29, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 30, 2014. The Center appointed Tobias Zuberbühler as the sole panelist in this matter on May 7, 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 maintains a worldwide hotel booking website and is the owner of the international trademark TRIVAGO (No. 910828) which was registered on August 18, 2006. The disputed domain name was registered on March 15, 2014. The corresponding website offers identical services as those of the Complainant. 5. Parties’ Contentions A. Complainant In summary, the Complainant contends the following: The protected trademark TRIVAGO and the disputed domain name <trvlago.com> differ only in two letters. The visual impression of the mark TRIVAGO is unaffected by this minor change and the casual reader may mistake the term “trvlago” for the mark “trivago”. This is even more so when the two URL notations are compared, “www.trivago.com” vs. “www.trvlago.com”. The two lower case letters “i” and “l” are nearly identical to the casual reader of the disputed domain name. Furthermore, there is no evidence that the Respondent owns any rights or legitimate interests in respect of the disputed domain name, and the Respondent intentionally attempts to attract Internet users for commercial gain by providing identical services as the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The second-level domain of the disputed domain name (“trvlago”) differs from the Complainant’s trademark (TRIVAGO) in that (i) the letter “i” is omitted between “r” and “v” and (ii) the letter “l” added between “v” and “a”. While the Complainant contends that these differences constitute typosquatting, the Panel has difficulties to see how an Internet user could accidently mistype “trivago” to end up at “trvlago”. This would require two non-consecutive mistypings, which is highly unlikely in the Panel’s view. However, an inquiry into similarity under paragraph 4(a)(i) is not limited to typosquatting cases. The present assessment of possible confusing similarity must take into consideration that (i) the Complainant maintains a well-known worldwide hotel booking website, (ii) the Respondent's website has the same look and feel as the Complainant's and uses exactly the same font and type size for the header "trvlago.com", (iii) the coined mark TRIVAGO has no dictionary meaning, and (iv) the Respondent has not filed any response. Because the Respondent is obviously attempting to capitalize on Internet traffic intended for the Complainant's website, it must be taken into account that the two signs to be compared (“trivago” and “trvlago”) are visually and phonetically similar. An Internet user glancing casually at the Respondent’s domain name and/or website might confuse them with the Complainant and its services. The Panel refers in this connection to Sierra HealthStyles LLC v. Modern Limited - Cayman Web Development , WIPO Case No. D2006-0020 , where the domain name <mirival.com> was found to be confusingly similar to the mark MIRAVAL even though the chance of a pure typo is minimal. Therefore, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademark and the Complainant has thus fulfilled paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name. Based on the Complainant’s contentions, the Panel finds that the Complainant, having made a prima facie case which remains unrebutted, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Respondent is using the disputed domain name to divert Internet traffic to its website offering competing and identical services to those of the Complainant, for the purpose of achieving commercial gain. Such conduct constitutes bad faith registration and use under paragraph 4(b)(iv) of the Policy. Accordingly, the Complainant has also satisfied paragraph 4(a)(iii) 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 <trvlago.com> be transferred to the Complainant. Tobias Zuberbühler Sole Panelist Date: May 21, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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