A UDRP complaint for the domain orbbitz.com was denied by a 1 member panel at the National Arbitration Forum.
Complainant, Orbitz Worldwide, LLC represented by CitizenHawk, Inc., filed a complaint for the domain orbbitz.com owned by A Kiansu from Vietnam.
Orbitz waited 11 years to file the complaint and still managed to do a terrible job. The panel seemed to punish Orbitz for doing a copy/paste of the requirements of finding bad faith registration and use but not actually providing any evidence at all.
The disputed domain was registered by Respondent in January 2002. This makes one wonder why complainants get 11 years to file for a complaint while respondent gets only 20 days to respond.
The Panel wondered why a party, especially one represented by an experienced representative didn’t make ANY arguments as to prove bad faith registration and use. To make these arguments on behalf of the complainant it would require the Panel to assume facts not in evidence. Complainant failed to meet its burden of proof of bad faith registration and use under Policy ¶4(a)(iii).
On March 1, 2013, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Panel’s Discussion and Findings
A. Identical or Confusingly Similar
Complainant owns the trademark registration with the United States Patent & trademark Office (“USPTO”) for the ORBITZ mark (Reg. No. 2,799,051 filed Jan. 19, 2001; registered Dec. 23, 2003). Respondent appears to reside in Vietnam.
Registration of a mark with the USPTO establishes rights in a mark, and the rights relate back to the filing date of the registration.
Complainant claims Respondent’s <orbbitz.com> domain name is confusingly similar to Complainant’s mark because it differs by only a single character from Complainant’s mark. Respondent includes Complainant’s mark and merely adds a single additional letter, “b.” Prior panels have held “the mere addition of a single letter to complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶4(a)(i).” See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) and this Panel agrees. Respondent adds the generic top-level domain name (“gTLD”) “.com.” Adding a gTLD (which is required for a domain name) also does not adequately distinguish Respondent’s domain name from Complainant’s mark under Policy ¶4(a)(i).
B. Rights or Legitimate Interests
Complainant claims Respondent has not been commonly known by the disputed domain name. The WHOIS record for the disputed domain name lists “A Kiansu” as the registrant.
Complainant argues Respondent is using the disputed domain name to resolve to an empty page featuring no substantive content or links. The website located at Respondent’s <orbbitz.com> is a blank, white page. Respondent has failed to make an active use of the disputed domain name, which means Respondent is certainly not using the disputed domain name for a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).
While Respondent has had the owned the domain name since January 31, 2002, it apparently hasn’t used it at all. If the web site isn’t used at all, Respondent could not have acquired any rights to the domain name.
C. Registered and Used in Bad Faith
Complainant claims Respondent’s disputed domain name currently resolves to an inactive site and that alone constitutes bad faith registration and use. That alone isn’t enough.
Complainant argues Respondent’s disputed domain name is a classic example of typosquatting. The Policy does not mention typosquatting as a ground for finding bad faith registration and use. Did Complainant assert Respondent registered the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant for more than Respondent paid? No.
Did Complainant asset Respondent registered the domain name to prevent the owner of the trademark from reflecting the mark in a corresponding domain name and Respondent has engaged in a pattern of such conduct? No.
Did Complainant assert Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor? No.
Did Complainant assert Respondent intentionally attempted to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with the Complainant’s mark? No.
Why didn’t Complainant make these arguments? This Panel does not know. This Panel is loath to make an argument for a party, especially one represented by an experienced representative. To make these arguments would require the Panel to assume facts not in evidence.
Complainant has failed to meet its burden of proof of bad faith registration and use under Policy ¶4(a)(iii).
Respondent has not registered or used the <orbbitz.com> domain name in bad faith if Respondent has not violated any of the factors listed in Policy ¶4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶4(a)(iii).
The Panel finds Policy ¶4(a)(iii) NOT satisfied.
So the complaint failed at the third element of the UDRP. For the foregoing reasons, the Complaint was denied.