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 Sachin Srivastava of Delhi, India.
The disputed domain name <efareportal.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 28, 2018. On October 1, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 1, 2018, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 15, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 4, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 5, 2018.
The Center appointed Luca Barbero as the sole panelist in this matter on November 9, 2018. 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.
The Complainant is a technology company that develops computer software used to power travel-related websites, including the websites available at “www.fareportal.com”, “www.cheapoair.com” and “www.onetravel.com”. Through these websites, the Complainant offers travel arrangement services such as airfare, temporary lodging, car rentals, and vacation packages.
The Complainant is the owner of the United States trademark registration No. 4356358 for FAREPORTAL, registered on June 25, 2013, claiming first use in commerce on January 1, 2002, in International classes 35, 39 and 42.
The domain name <fareportal.com>, on which one of the Complainant’s websites is based, was registered on August 19, 2002.
The disputed domain name <efareportal.com> was registered on November 7, 2017 and is currently pointed to a suspended website. According to the screenshots submitted as Exhibit D to the Complaint, the disputed domain name was previously pointed to a website promoting travel-related services, displaying a telephone number with a “+1” international prefix for United States and an office address located in Las Vegas, United States.
The Complainant contends that the disputed domain name is confusingly similar to its trademark FAREPORTAL as it incorporates the trademark in its entirety with the sole addition of the letter “e”, which is non-distinctive and is thus insufficient to avoid a claim of infringement.
The Complainant claims that the Respondent has no rights or legitimate interests in the disputed domain name because:
i) the trademark FAREPORTAL belongs exclusively to the Complainant and the Respondent is not a licensee of the Complainant nor has obtained permission, either express or implied, from the Complainant to use the trademark, or any domain name incorporating such trademark;
ii) there is no evidence that the Respondent is or has ever been commonly known by the disputed domain name;
iii) 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 noncommercial or fair use of the same, since the Complainant is using the disputed domain name to misdirect or “bait” Internet users seeking to utilize or learn more about the Complainant’s travel-related services to its own website, which purports to offer identical services as well, but actually solicits user information for seemingly nefarious purposes. Moreover, the Respondent is not using the trademark FAREPORTAL to refer to a “fare portal”, as its website lacks any search capability whatsoever.
The Complainant submits that the Respondent registered and is using the disputed domain name in bad faith for the following reasons:
i) the Respondent could not plausibly assert that, in registering the disputed domain name, it was unaware of the Complainant’s rights in the trademark FAREPORTAL, especially where the Respondent fully incorporates the trademark in the disputed domain name, merely adding the prefix “e,” which commonly denotes the availability of a business’s services online;
ii) the Respondent is deemed to have constructive knowledge of the Complainant’s trademark rights by virtue of the Complainant’s federal registration for the trademark FAREPORTAL;
iii) the misleading and deceptive travel-related services allegedly offered through the website at the disputed domain name reflect “paradigmatic bad faith” and support the inference that the Respondent registered the disputed domain name with the bad faith intent to deceive consumers, and that the Respondent has intentionally used the disputed domain name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark and website “www.fareportal.com” as to the source, sponsorship, affiliation or endorsement of the Respondent’s own website and fraudulent services;
iv) Internet users visiting the website at the disputed domain name are falsely led to believe that if they call the Toll-Free Number displayed therein or input certain personal information, namely, their name and e-mail address, they will receive authentic, discounted travel prices. Instead, users are asked for contact information, without any flights or prices being provided;
v) the Respondent’s use of the disputed domain name creates initial interest confusion;
vi) featuring another’s trademarks and offering services identical to those offered by the Complainant and using the Complainant’s marks to suggest a connection between the disputed domain name and the Complainant is evidence of bad faith;
vii) the Respondent’s actions will damage the Complainant’s trademark FAREPORTAL and the Complainant’s assets, and the Respondent must have expected that any use of the disputed domain name would cause such harm to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
According to paragraph 15(a) of the Rules: “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
The Complainant has established rights over the trademark FAREPORTAL based on its United States trademark registration cited under Section 4 above.
The disputed domain name reproduces the trademark FAREPORTAL in combination with the letter “e” as prefix and the generic Top-Level domain “.com”, which can be disregarded being a mere technical requirement for registration.
The Panel finds that the mere addition of the letter “e” to the trademark FAREPORTAL does not prevent a finding of confusing similarity of the disputed domain name with the Complainant’s trademark and may also be interpreted as a misspelled prefix of FAREPORTAL. As stated in section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. See also ACCOR v. I&M Raamatupidamise O/Accora Consult OÜ, WIPO Case No. D2006-0650 (<accora.com>), where the panel stated that the addition of “the single letter “a” is an obvious attempt to “typosquat” the Domain Name and is insufficient to avoid confusion”, and Edmunds.com, Inc. v. Digi Real Estate Foundation, WIPO Case No. D2006-1043 (<edmundss.com>), finding that “this is clearly a “typosquatting” case where the disputed domain name is a slight misspelling of a registered trademark to divert internet traffic”.
Therefore, the Panel finds that the Complainant has proven that the disputed domain name is confusingly similar to a trademark in which the Complainant has established rights according to paragraph 4(a)(i) of the Policy.
The Panel finds that the Complainant has made a prima facie case and that the Respondent, by not having submitted a Response, has failed to demonstrate rights or legitimate interests in the disputed domain name in accordance with paragraph 4(c) of the Policy for the following reasons.
According to the evidence on record, there is no relationship between the Complainant and the Respondent and the Complainant has not authorized the Respondent to register or use its trademark or the disputed domain name.
In addition, there is no evidence that the Respondent might be commonly known by the disputed domain name.
As mentioned above, the disputed domain name has been pointed to a website promoting purported travel services identical to the ones provided by the Complainant under the nearly identical domain name <fareportal.com>.
In view of the above-described use of the disputed domain name, the Panel finds that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant’s trademark.
Therefore, the Panel finds that the Complainant has proven the requirement prescribed by paragraph 4(a)(ii) of the Policy.
Paragraph 4(a)(iii) of the Policy requires that the Complainant prove that the disputed domain name was registered and is being used by the Respondent in bad faith.
The Panel finds that the Respondent’s registration, on November 7, 2017, of the disputed domain name, which is almost identical to the Complainant’s prior trademark FAREPORTAL and its domain name <fareportal.com>, does not amount to a mere coincidence. The Panel notes that the website published at the disputed domain name displays a telephone number and an address located in the United States – where the trademark FAREPORTAL has been used for sixteen years by the Complainant – and is used to promote purported travel services identical to the ones provided by the Complainant through its website “www.fareportal.com”.
In view of the above, the Panel finds that, in all likelihood, the Respondent was aware of the Complainant’s trademark at the time of registration and intended to target such trademark.
The Panel also notes that, in view of the use of the disputed domain name to divert users to the website described above, providing travel arrangements solutions like the ones offered by the Complainant, the Respondent intentionally attempted to attract Internet users to its website, for commercial gain, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of its website and the services provided therein, according to paragraph 4(b)(iv) of the Policy.
At the time of the drafting of this Decision, the disputed domain name does not resolve to an active website, as it appears that the website to which it previously pointed was suspended. However, it is well established that passive holding of a domain name could amount to bad faith under certain circumstances as decided, i.a., in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
In the case at hand, in view of i) the Respondent’s registration of a domain name substantially identical to the Complainant’s prior trademark; ii) the absence of any documented rights or legitimate interests of the Respondent in the disputed domain name; iii) the Respondent’s failure to respond to the Complaint; and iv) the prior use of the disputed domain name as demonstrated by the evidence submitted by the Complainant, which has not been challenged by the Respondent, the Panel finds that the current passive holding of the disputed domain name by the Respondent does not prevent a finding of bad faith registration and use.
Therefore, the Panel finds that the Complainant has also proven the requirement prescribed by paragraph 4(a)(iii) of the Policy.
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, <efareportal.com>, be transferred to the Complainant.
Luca Barbero
Sole Panelist
Date: November 23, 2018