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 Harmeet Sethi, dial4travel.com of London, United Kingdom of Great Britain and Northern Ireland, self-represented.
The disputed domain name <cheapfareportal.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 12, 2015. On August 12, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 13, 2015, 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 proceeding commenced on August 21, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 10, 2015. The Response was filed with the Center on September 9, 2015.
The Center appointed Alistair Payne as the sole panelist in this matter on September 16, 2015. 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 develops software to power travel related websites and operates a number of websites that offer low cost related travel services, such as the website at “www.cheapoair.com” and at its website at “www.fareportal.com” provides Internet users with access to information regarding Fareportal and its services. The Complainant owns various United States trade mark registrations including, in particular, CHEAPOAIR under registration number 3576166, registered in February 2009 and FAREPORTAL under registration number 4356358 filed in March 2012 and subsequently registered in June 2013.
The Respondent registered the disputed domain name on January 3, 2013 from which it operates a travel reservation website.
The Complainant submits that it owns registered trade mark rights for its FAREPORTAL and CHEAPOAIR marks as set out above. It says that the disputed domain name incorporates in its entirety the FAREPORTAL mark and also incorporates a portion of the CHEAPOAIR mark and as a consequence the disputed domain name is confusingly similar to its registered trade marks.
It says further that the Respondent is not using the disputed domain name for a bona fide or fair business or noncommercial purpose, is not a licensee of the Complainant’s, has not been permitted in any way by the Complainant to use its marks and is not generally known by the disputed domain name. The Complainant says that the Respondent while ostensibly offering travel booking services appears in reality to be collecting Internet users’ contact information without providing any valid travel related services in exchange. It notes that the Respondent’s website lacks any search capability and that the Respondent’s lack of good faith is further demonstrated by the fact of the visual similarities between the Respondent’s website at the disputed domain name and the Complainant’s own website.
As far as registration in bad faith is concerned, the Complainant submits that the Respondent’s wholesale inclusion of its FAREPORTAL mark together with the partial inclusion of its CHEAPOAIR mark suggests that the Respondent must have been aware of the Complainant’s marks when it registered the disputed domain name. It further says that based on its prior trade mark registrations in the United States, the Respondent had knowledge of its rights. In addition, the Complainant says that the Respondent has used the disputed domain name for commercial gain to confuse Internet users and to divert them to its website which emulates the Complainant’s website and creates a likelihood of confusion with the Complainant’s marks as to the source, sponsorship or affiliation of the Respondent’s website. This, says the Complainant, is evidence under paragraph 4(b)(iv) of the Policy of the Respondent’s bad faith.
The Complainant further submits that the Respondent’s diversion of Internet users to its website falsely led Internet users to believe that the site was associated with the Complainant and that if the users entered certain parameters of personal information that they would receive discounted travel fare offers. In fact, says the Complainant, users do not receive discounted travel offers but the Respondent appears to take the personal details entered for its own commercial purposes. Further, there is no association with the Complainant’s site or service and Internet users are deceived as a result by the Respondent who is effectively offering a competing service to the Complainant’s service. This, says the Complainant, amounts to evidence of bad faith, in particular, under paragraph 4(b)(iv) of the Policy.
The Respondent submits that the disputed domain name was registered in 2013 through the Registrar and has no connection with the Complainant’s marks, domain names, website or company name. Further, it says that the Complainant’s “pseudo”, company name and website are different from the Respondent’s name, the disputed domain name or the Respondent’s website.
It says in addition that it stopped using its website when notified of the Complaint and that it is prepared to use a disclaimer on its website in the future to avoid any Internet user confusion. Lastly, it says that it has invested resources in building its website.
The Complainant has demonstrated that it owns registered trade mark rights in the FAREPORTAL mark as set out above. This mark, although a combination of two common English words, is unusual and distinctive and is wholly incorporated into the disputed domain name. It is preceded in the disputed domain name by the addition of the common English word “cheap”. The addition of this word does not in the Panel’s view distinguish the disputed domain name from the Complainant’s FAREPORTAL mark which remains the dominant element of the disputed domain name. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s FAREPORTAL registered trade mark.
The fact that the Complainant is also the registered proprietor of the CHEAPOAIR mark and that the first element of this mark has been incorporated by the Respondent into the disputed domain name is relevant to the Panel’s discussion of registration in bad faith under the third element of the Policy.
Accordingly, the Panel finds that the Complaint succeeds under the first element of the Policy.
The Complainant alleges that the Respondent is not using the disputed domain name for a bona fide or fair business or noncommercial purpose, is not a licensee of the Complainant’s, has not been permitted in any way by the Complainant to use its marks and is not generally known by the disputed domain name. As described below under Section C, the Complainant alleges that the Respondent has developed its website at the disputed domain name in order to emulate the Complainant’s website and to confuse Internet users into thinking that there is some association with the Complainant that it does not have in fact. It says that the Respondent does not in fact operate a hotel search or reservation service at its website and suggests that it is really a ploy to gather Internet users’ personal information and details.
There is no evidence before the Panel to rebut the Complainant’s case under this element of the Policy and it is instructive that the Respondent has not explained in its Response the purpose of its website at the disputed domain name or its business model. As a result, 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 the Respondent has failed to rebut this case. In addition, for the reasons set out under Section C below, the Panel finds that the Complaint succeeds under the second element of the Policy.
The disputed domain name was registered by the Respondent in January 2013 after the Complainant filed its United States trade mark registration in March 2012 and long after the “first use in commerce” date of 2002 for this mark as noted on the trade mark registration certificate. The Panel notes further that the Complainant’s CHEAPOAIR mark was registered in 2009 long before the Respondent’s registration of the disputed domain name.
The Panel finds that the disputed domain name wholly incorporates the Complainant’s FAREPORTAL mark. This mark has at least a reasonable level of distinctiveness as noted in the discussion under the first element above. It is not a commonly used combination of English words or one that two entities would necessarily be likely to coincidentally start using in relation to hotels and travel reservations. Also considering the similarity in the overall “look” of the website at the disputed domain name and the discussion concerning use in bad faith below, the Panel infers that the Respondent was aware of the Complainant’s FAREPORTAL mark and business at the time of its registration of the disputed domain name and chose it on purpose and in bad faith.
The Respondent’s website at the disputed domain name has a distinct similarity in overall “look” to the Complainant’s website and the Panel finds that Internet users could well be confused into thinking that the disputed domain name and website has some connection or association with the Complainant that it does not in fact have. The Respondent’s choice of combining the word “cheap” with “fareportal” in the disputed domain name only serves to reinforce the likelihood that Internet users might draw an association between the Complainant’s FAREPORTAL and CHEAPOAIR marks and businesses and the disputed domain name and the website to which it resolves. The Panel notes that the Respondent’s suggestion of placing a disclaimer on the website would not in any event assist in allaying the potential for Internet user confusion at the date of the Complaint.
The Respondent has not explained its business model or directly denied the Complainant’s allegation that the website at the disputed domain name does not return search criteria or fares and is simply a means by which the Respondent collects the personal details of users. Certainly it appears to the Panel that the website is not being used for noncommercial purposes and therefore that the disputed domain name and the website to which it resolves are being used for commercial purposes and ostensibly at least, for a travel booking site that competes with the Complainant’s website. As a result, the Panel finds that the requirements of paragraph 4(b)(iv) of the Policy have been made out and that this amounts to evidence of the registration and use of the disputed domain name in bad faith.
Accordingly, the Complaint succeeds under the third element 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 <cheapfareportal.com> be transferred to the Complainant.
Alistair Payne
Sole Panelist
Date: September 30, 2015