The Complainant is Skyscanner Limited, United Kingdom, represented by Keltie LLP, United Kingdom.
The Respondent is Domain Admin, Domain Privacy Guard Sociedad Anonima Ltd., Panama.
The disputed domain name <kskyscanner.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 16, 2020. On January 16, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 17, 2020, 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 January 21, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 10, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on February 11, 2020.
The Center appointed Dennis A. Foster as the sole panelist in this matter on February 19, 2020. 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.
Acquired by a Chinese company in 2016, the Complainant is a United Kingdom subsidiary that engages in online travel agency services. In connection with its services, the Complainant uses the SKYSCANNER service mark that, among other valid registrations, has been registered with the United Kingdom Intellectual Property Office (“UKIPO”) (Registration No. 2,313,916, registered on April 30, 2004).
The Respondent is the owner of the disputed domain name <kskyscanner.com>, which was registered on November 16, 2017. The disputed domain name currently leads to a website that presents links to third party websites that offer services that compete directly with those offered by the Complainant.
- Acquired by a Chinese company in 2016, the Complainant is originally a United Kingdom enterprise that operates as an online travel agency. In connection with its operations, the Complainant has used the SKYSCANNER service mark for considerably longer than a decade. That mark is registered with many trademark authorities around the world. The Complainant also does business through its domain name <skyscanner.net>.
- The disputed domain name <kskyscanner.com> is virtually identical to the Complainant’s SKYSCANNER mark. The “k” added at the beginning of the full service mark is insufficient to create a meaningful distinction between the disputed domain name and that mark. Moreover, the addition of the generic Top-Level Domain ("gTLD"), “.com”, is of no consequence.
- The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not consented to the use of its service mark by the Respondent. The disputed domain name is used to host a website that displays links to competitors of the Complainant as a means to derive pay-per-click (“PPC”) revenue, which use does not constitute a bona fide offering of goods or services. Furthermore, there is no evidence to suggest that the Respondent is commonly known as the disputed domain name.
- The disputed domain name was registered and is being used in bad faith. The Respondent’s use of the disputed domain name, which is confusingly similar to the Complainant’s service mark, for PPC linkage is an intentional attempt to gain commercially from Internet user confusion as to possible affiliation between the Respondent’s website and the Complainant. Moreover, by posting online a sale price of USD 2,967 for the disputed domain name, the Respondent is attempting to sell the disputed domain name for far more than Respondent’s out-of-pocket costs directly related to that name.
The Respondent did not file a response.
Per paragraphs 4(a)(i) - (iii) of the Policy, the Panel may find for the Complainant and order a transfer of the disputed domain name, <kskyscanner.com>, if the Complainant shows that:
- the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name has been registered and is being used in bad faith.
The Complainant has presented the Panel with conclusive evidence that the Complainant owns a valid UKIPO registration for the service mark, SKYSCANNER, and thus the Panel finds that the Complainant has sufficient rights in that mark to satisfy the threshold requirement of Policy paragraph 4(a)(i). See, Daily Mail and General Trust Plc v. Sun Stefen, WIPO Case No. D2018-0818 (“The Panel accepts the uncontested evidence in the form of a copy of the UKIPO registration document that the Complainant has rights as required under the Policy in the trademark DMGT.”); and Skyscanner Limited v. Mohit Bajaj, WIPO Case No. D2016-1481 (“The Panel has verified that the Complainant has rights in the SKYSCANNER trade mark”).
The disputed domain name, <kskyscanner.com>, is nearly the same as, but not identical to, the SKYSCANNER service mark. The minor differences, a letter “k” preceding the exact lettering of the mark and the gTLD, “.com”, added at the end of that lettering, fail to create any consequential distinction between the two. As a result, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s service mark for the purposes of Policy paragraph 4(a)(i). See, Skyscanner Limited v. Registration Private, Domains By Proxy, LLC / Carolina Rodrigues, Fundacion Comercio Electronico, WIPO Case No. D2019-2851 (finding <skskyscanner.com> to be confusingly similar to the SKYSCANNER mark); and Joanne Rowling v. Alvaro Collazo, WIPO Case No. D2004-0787 (finding <kjkrowling.com> to be confusingly similar to the J K ROWLING mark).
Accordingly, the Panel finds that the Complainant has succeeded in showing that the disputed domain name is identical or confusingly similar to a service mark in which the Complainant has rights.
In order to prevail as to this second element required under the Policy, the Complainant must make at least a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, whereupon the burden shifts to the Respondent to present evidence that it does possess those rights or interests. See, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
Since the Complainant has established above that the disputed domain name is confusingly similar to its valid service mark and asserts without reservation that the Respondent has no permission from the Complainant to use that mark in any manner, the Panel determines that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent has presented no evidence. Ergo, the Panel will examine the record overall, including the relevant contentions found in the Complaint, to determine whether there is any support for the proposition that the Respondent has rights or legitimate interests in the disputed domain name. In doing so, the Panel will accept all reasonable contentions as true. See, OSRAM GmbH. v. Mohammed Rafi/Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org, WIPO Case No. D2015-1149 (“The Respondent has not submitted a response to the Complaint, in the absence of which the Panel may accept all reasonable inferences and allegations in the Complaint as true.”).
The Panel accepts, as the Complainant contends, that the disputed domain name is currently used to host a website that provides PPC links to the websites of some of the Complainant’s direct competitors. This usage, in the view of the Panel, fails to conform to a bona fide offering of goods and services under Policy paragraph 4(c)(i). See, WIPO Overview 3.0, section 2.9 (“...panels have found that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users.”); and Merck Sharp & Dohme Corp. v. Domain Administrator, PrivacyGuardian.org / George Ring, DN Capital Inc., WIPO Case No. D2017-0302 (“...using a domain name incorporating the Complainant’s mark to host sponsored links associated with the Complainant’s area of business cannot be a bona fide offering of goods or services.”).
Furthermore, there is no evidence in the record to support the idea that the Respondent is commonly known as the disputed domain name, thus negating the possibility that Policy paragraph 4(c)(ii) can be used to assist the Respondent with regard to this issue. Also, with respect to Policy paragraph 4(c)(iii), the acceptance of the Complainant’s contention that the disputed domain name is attached to a website featuring PPC links, thereby generating revenue for the Respondent, causes the Panel to conclude that the Respondent is not making “legitimate noncommercial or fair use” of the disputed domain name.
Given the analysis above, the Panel determines that neither the Respondent nor the record has furnished a successful rebuttal to the Complainant’s prima facie case.
Accordingly, the Panel finds that the Complainant has proved that the Respondent has no rights or legitimate interests in the disputed domain name.
As noted above, the Complainant contends, and the Panel accepts, that the disputed domain name is connected to a website that displays PPC links to third party websites owned by the Complainant’s direct competitors. The Panel reasons, then, that the Respondent clearly intends to gain commercially from confusion generated among Internet users who encounter the disputed domain name, which has been found above to be confusingly similar to the Complainant's service mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website. This circumstance is clearly enumerated in Policy paragraph 4(b)(iv) as conclusive evidence of bad faith registration and use of the disputed domain name. See, Fontem Holdings 4, B.V. v. J- B-, Limestar Inc., WIPO Case No. D2016-0344 (“The Panel further finds that the Respondent’s use of the [disputed] Domain Name to resolve to a parking page containing sponsored links constitutes bad faith[...]in accordance with paragraph 4(b)(iv) of the Policy.”); and Mpire Corporation v. Michael Frey, WIPO Case No. D2009-0258 (“...the use of a [disputed] domain name that is deceptively similar to a trademark to obtain click-through-revenue is found to be bad faith use.”).
The Complainant has also brought to the Panel’s attention an online advertisement, presumably placed by the Respondent, that offers the disputed domain name for sale at a price of USD 2,967, a sum clearly in excess of the Respondent’s out-of-pocket costs related directly to the disputed domain name. The Panel believes that the advertisement is directed toward the Complainant and/or its competitors, and thus falls within the bad faith registration and use circumstance listed in Policy paragraph 4(b)(i). See, Dollar Bank, Federal Savings Bank v. Paul Stapleton, The New Media Factory, WIPO Case No. D2016-0518 (“Respondent registered the disputed domain name which is confusingly similar to Complainant's service marks, and has offered it for sale to the public at a price that appears to be substantially in excess of his costs associated with the disputed domain name [...] The Panel determines that Respondent registered and has used the disputed domain name in bad faith within the meaning of paragraph 4(b)(i) of the Policy.”).
Accordingly, the Panel finds that the Complainant has demonstrated that the disputed domain name was registered and is being used in bad faith.
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, <kskyscanner.com>, be transferred to the Complainant.
Dennis A. Foster
Sole Panelist
Date: March 4, 2020