Airbnb, Inc. v Nick Smith

WIPO Case No. DIO2024-0005

ARBITRATION

AND

MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

Airbnb, Inc. v. Nick Smith

Case No. DIO2024-0005

1. The Parties

The Complainant is Airbnb, Inc., United States of America (“United States”), represented by Kilpatrick

Townsend & Stockton LLP, United States.

The Respondent is Nick Smith, United States.

2. The Domain Name and Registrar

The disputed domain name <airbnbseo.io> is registered with NameCheap, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 1, 2024.

On March 5, 2024, the Center transmitted by email to the Registrar a request for registrar verification in

connection with the disputed domain name. On March 5, 2024, the Registrar transmitted by email to the

Center its verification response disclosing registrant and contact information for the disputed domain name

which differed from the named Respondent (Redacted for Privacy) and contact information in the Complaint.

The Center sent an email communication to the Complainant on March 6, 2024 providing the registrant and

contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the

Complaint. The Complainant filed an amendment to the Complaint on March 7, 2024.

The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal

requirements of the .IO Domain Name Dispute Resolution Policy (the “Policy”), the Rules for .IO Domain

Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .IO 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 March 11, 2024. In accordance with the Rules, paragraph

5, the due date for Response was March 31, 2024. The Center received an email from an individual

purporting to communicate on behalf of the Respondent on March 21, 2024. The Respondent did not reply

to the Complainant’s contentions. Accordingly, the Center notified the commencement of panel appointment

process on April 2, 2024.

page 2

The Center appointed Evan D. Brown as the sole panelist in this matter on April 10, 2024. 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.

4. Factual Background

The Complainant provides a community marketplace for people to list, discover, and book accommodations

and experiences around the world. It owns the trademark AIRBNB which it has registered in a number of

countries, including the United States (Reg. No. 3,971,784, registered on May 31, 2011). According to the

WhoIs records, the disputed domain name was registered on December 6, 2023. The Respondent has used

the disputed domain name to operate a website purportedly to assist property owners to increase rental

bookings with SEO keywords. The Respondent offers services through the disputed domain name regarding

the Complainant’s competitors and includes a disclaimer “AirbnbSEO is not affiliated with Airbnb Inc”.

Currently, the disputed domain name states: “The content for this page is empty or has not been saved.

Please edit this page and “Save” the contents in the builder”.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is identical or confusingly similar to the

Complainant’s trademark; that the Respondent has no rights or legitimate interests in respect of the disputed

domain name; and that the disputed domain name was registered and is being used in bad faith.

B. Respondent

The Respondent did not formally reply to the Complainant’s contentions. On March 21, 2024, an unidentified

individual sent a message to the Center purporting to communicate on behalf of the Respondent, generally

denying both knowledge of the situation and registration/ownership of the disputed domain name and asking

why information was being disclosed in the matter.

6. Discussion and Findings

To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy

have been satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark or

service mark in which the Complainant has rights, (ii) the Respondent has no rights or legitimate interests in

respect of the disputed domain name, and (iii) the disputed domain name has been registered or is being

used in bad faith. The Panel finds that all three of these elements have been met in this case.

A. Identical or Confusingly Similar

This first element functions primarily as a standing requirement. WIPO Overview of WIPO Panel Views on

Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7. [1] The standing (or threshold)

[1]Although WIPO Overview 3.0 is directed to the Uniform Domain Name Dispute Resolution Policy (“UDRP”), given the similarity

test for confusing similarity involves a reasoned but relatively straightforward comparison between the

complainant’s trademark and the disputed domain name. Id. This element requires the Panel to consider

two issues: first, whether the Complainant has rights in a relevant mark; and second, whether the disputed

domain name is identical or confusingly similar to that mark.

page 3

A registered trademark provides a clear indication that the rights in the mark shown on the trademark

certificate belong to its respective owner. See Advance Magazine Publishers Inc., Les Publications Conde

Nast S.A. v. Voguechen, WIPO Case No. D2014-0657. The Complainant has demonstrated its rights in the

AIRBNB mark by providing evidence of its trademark registrations.

The disputed domain name incorporates the AIRBNB mark in its entirety with the term “SEO”, which does

not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s

AIRBNB mark. See WIPO Overview 3.0, section 1.8. The AIRBNB mark remains recognizable for a

showing of confusing similarity under the Policy.

Accordingly, the Panel finds that the Complainant has established this first element under the Policy.

B. Rights or Legitimate Interests

The Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a

prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain

name. If the Complainant makes that showing, the burden of production of demonstrating rights or legitimate

interests shifts to the Respondent (with the burden of proof always remaining with the Complainant). See

WIPO Overview 3.0, section 2.1; AXA SA v. Huade Wang, WIPO Case No. D2022-1289.

On this point, the Complainant asserts, among other things, that: (1) the Respondent is not using the

disputed domain name in connection with the bona fide offering of goods or services, but is using the

disputed domain name to offer services related to those of the Complainant without authorization, (2) the

Respondent has not been commonly known by the disputed domain name, (3) the Respondent is not making

a legitimate noncommercial or fair use of the disputed domain name, and (4) the Respondent is not making a

fair use of the disputed domain name.

UDRP panels have recognized that website operators using a domain name containing a complainant’s

trademark to undertake sales related to the complainant’s goods or services may be making a bona fide

offering of goods and services and thus have a legitimate interest in such domain name. Outlined in the “Oki

Data test”, (Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903) the following cumulative

requirements will be applied in the specific conditions of a UDRP case:

(i) the respondent must actually be offering the goods or services at issue;

(ii) the respondent must use the site to sell only the trademarked goods or services;

(iii) the site must accurately and prominently disclose the registrant’s relationship with the trademark

holder; and

(iv) the respondent must not try to “corner the market” in domain names that reflect the trademark.

While the Respondent technically is not a reseller or distributor, the Panel notes the Respondent’s services

are ancillary or connected to the Complainant’s services. The Panel has applied the Oki Data test to the

facts of this case and finds that the circumstances do not warrant the finding of a bona fide offering of goods

and services. In particular, the record shows the website associated with the disputed domain names was

used to promote services competitive to those services of the Complainant (e.g., the services of VRBO).

The Panel finds that the Complainant has made the required prima facie showing. The Respondent has not

presented evidence to overcome this prima facie showing. And nothing in the record otherwise tilts the

balance in the Respondent's favor.

The Panel finds that the inclusion of the disclaimer does not change this finding as the Panel considers that

the Respondent registered the disputed domain name in order to divert visitors to its website taking an unfair

advantage of the confusing similarity with the Complainant’s trademark. In addition, any disclaimer would

remain under the Respondent’s control who can change it at any point.

Accordingly, the Panel finds that the Complainant has established this second element under the Policy.

page 4

C. Registered or Used in Bad Faith

Because the Complainant’s AIRBNB mark is well-known, and is registered in jurisdictions around the world,

the Panel finds it likely that the Respondent was aware of that mark when it registered the disputed domain

name. In the circumstances of this case, without the benefit of any explanation whatsoever from the

Respondent as to a possible good faith use of the disputed domain name, such a showing is sufficient to

establish bad faith registration of the disputed domain name.

The circumstances also demonstrate bad faith use of the disputed domain name in terms of the Policy.

Where a disputed domain name is “so obviously connected with such a well-known name and products…its

very use by someone with no connection with the products suggests opportunistic bad faith”. See, Parfums

Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226. Bad faith use of

the disputed domain name is shown from the commercial nature of the website associated with the disputed

domain name, i.e., using the disputed domain name—which is confusingly similar to the Complainant’s

mark—to purportedly offer services related to the Complainant and to promote services competitive to the

Complainant.

The Panel finds that the Complainant has succeeded under this third element.

7. Decision

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 <airbnbseo.io> be transferred to the Complainant.

/Evan D. Brown/

Evan D. Brown

Sole Panelist

Date: April 24, 2024

between the UDRP and the .IO Policy, it is appropriate to have regard to these principles except to the extent that the .IO Policy

diverges from the UDRP.