Expediam.com

The timeline behind expediam.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Expedia, Inc. v. Conquest Business Ventures, Inc. Claim Number: FA0505000482611 PARTIES Complainant is Expedia, Inc. (“Complainant”), represented by Kristen S. Knecht, of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, 311 South Wacker Drive, Suite 5000, Chicago, IL 60606. Respondent is Conquest Business Ventures, Inc. (“Respondent”), P.O. Box 837, Willemstad, Curacao, Arizona 00114. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <expediam.com>, registered with Go Daddy Software, Inc. PANEL The undersigned certifies that he has acted independently and impartially and, to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding. The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on May 20, 2005; the National Arbitration Forum received a hard copy of the Complaint on May 23, 2005. On May 23, 2005, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the domain name <expediam.com> is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On May 27, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 16, 2005 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@expediam.com by e-mail. Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On June 22, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <expediam.com> domain name is confusingly similar to Complainant’s EXPEDIA.COM mark. 2. Respondent does not have any rights or legitimate interests in the <expediam.com> domain name. 3. Respondent registered and used the <expediam.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant, Expedia, Inc., is a provider of online travel agency services, specifically through its website located at the <expedia.com> domain name. Complainant has registered its EXPEDIA.COM mark with the United States Patent and Trademark Office (“USPTO”) (Reg. Nos. 2,405,746 issued November 21, 2000; 2,610,319 issued August 20, 2002). Respondent registered the <expediam.com> domain name on October 29, 2004. Respondent’s domain name resolves to a website that features links to various travel-related services, many of which compete directly with Complainant. DISCUSSION Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint."). Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. Identical and/or Confusingly Similar Complainant has established rights in the EXPEDIA.COM mark through registration of the mark with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and that it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Respondent’s <expediam.com> domain name is confusingly similar to Complainant’s EXPEDIA.COM mark. The insertion of the additional letter “m” to Complainant’s mark does not circumvent a finding of confusing similarity under Policy ¶ 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Nintendo of Am., Inc. v. Lizmi, FA 94329 (Nat. Arb. Forum Apr. 24, 2000) (finding that the respondent’s domain names <pokemon2000.com> and <pokemons.com> are confusingly similar to the complainant’s mark). The Panel finds that Policy ¶ 4(a)(i) has been satisfied. Rights or Legitimate Interests Complainant has argued that Respondent lacks rights and legitimate interests in the <expediam.com> domain name. Respondent, in neglecting to respond, has failed to propose any set of circumstances to support a claim of rights or legitimate interests in the disputed domain name. Thus, Respondent’s failure to respond may be interpreted as evidence that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the panel and the respondent did not come forward to suggest any right or interest it may have possessed); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). Respondent is using the disputed domain name to operate a website that features links to various travel-related websites, many of which directly compete with Complainant and from which Respondent presumably earns click-through fees. The Panel finds that such diversionary and competitive use of the domain name is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Wells Fargo & Co. v. Ling Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party websites is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) because the registrant presumably receives compensation for each misdirected Internet user). Furthermore, nothing in the record or WHOIS information indicates that Respondent is either commonly known by the disputed domain name or authorized to register domain names featuring Complainant’s EXPEDIA.COM mark. Thus, the Panel finds that Respondent has not established rights or legitimate interests in the <expediam.com> domain name pursuant to Policy ¶ 4(c)(ii). See Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the notion that a respondent is commonly known by a domain name, the notion must be rejected); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain, one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”). The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. Registration and Use in Bad Faith Respondent is using the confusingly similar <expediam.com> domain name to divert Internet users to various commercial websites through a series of hyperlinks, from which Respondent presumably earns click-through fees. The Panel finds that Respondent, through its use of the <expediam.com> domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s EXPEDIA.COM mark as to the source and affiliation of the website and services advertised thereon. Thus, the Panel finds that Respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant’s mark when the domain name resolves to commercial websites and the respondent fails to contest the Complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)). Furthermore, the Panel finds that Respondent registered the <expediam.com> domain name with actual or constructive knowledge of Complainant’s rights in the EXPEDIA.COM mark due to Complainant’s registration of the mark with the USPTO. Moreover, Respondent is using the domain name to promote nearly identical travel services as Complainant, thus demonstrating that Respondent registered the domain name with actual knowledge of Complainant and its famous EXPEDIA.COM mark. Respondent’s act of registering a domain name that is confusingly similar to Complainant’s mark, with actual and constructive knowledge of Complainant’s superior rights in the mark, is tantamount to bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration); see also Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed on the Principal Register of the USPTO, a status that confers constructive notice on those seeking to register or use the mark or any confusingly similar variation thereof.”); see also Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about Complainant’s mark when it registered the subject domain name”). The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <expediam.com> domain name be TRANSFERRED from Respondent to Complainant. The Honorable Charles K. McCotter, Jr. (Ret.), Panelist Dated: July 1, 2005 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.