Dallas / Fort Worth International Airport Board v. Elisa Browning
Claim Number: FA2007001904597
Complainant is Dallas / Fort Worth International Airport Board (“Complainant”), represented by Amanda J. Greenspon of Munck Wilson Mandala, LLP, Texas, USA. Respondent is Elisa Browning (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dwfairport.com>, registered with DNC Holdings, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 16, 2020; the Forum received payment on July 16, 2020.
On July 17, 2020, DNC Holdings, Inc. confirmed by e-mail to the Forum that the <dwfairport.com> domain name is registered with DNC Holdings, Inc. and that Respondent is the current registrant of the name. DNC Holdings, Inc. has verified that Respondent is bound by the DNC Holdings, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 22, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 11, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@dwfairport.com. Also on July 22, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On August 14, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant represents an international airport facilitating private and commercial air travel in the Dallas/Fort Worth Metroplex and the surrounding areas in North Central Texas.
Complainant has rights in the DFW AIRPORT mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <dwfairport.com> domain name is confusingly similar to Complainant’s mark as Respondent merely misspells Complainant’s mark and adds the “.com” generic top-level domain (“gTLD”).
Respondents has no rights or legitimate interests in the <dwfairport.com> domain name as Respondent is not commonly known by the at-issue domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is diverting Internet users to Respondent’s site which hosts competing hyperlinks.
Respondent registered and used the at-issue domain name in bad faith. Specifically, Respondent has an established pattern of bad faith registrations. Next, Respondent is attempting to pass off as Complainant to attract Internet users for commercial gain. Additionally, Respondent’s <dwfairport.com> domain name is parked, which is indicative of Respondent’s bad faith. Finally, Respondent had actual or constructive knowledge of Complainant’s rights in the DFW AIRPORT mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the DFW AIRPORT mark as demonstrated by its registration of such mark with the USPTO.
Complainant’s rights in the DFW AIRPORT mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark.
Respondent uses the <dwfairport.com> domain name to address a website that trades on Complainant’s DFW AIRPORT trademark by offering pay-per-click links.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for the DFW AIRPORT mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(I). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
The at-issue domain name consists of Complainant’s DFW AIRPORT trademark less its impermissible space, with its “F” and “W” transposed, all followed by the top level domain name “.com.” The differences between the at-issue <dwfairport.com> domain name and Complainant’s DFW AIRPORT trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i) Respondent’s <dwfairport.com> domain name is confusingly similar to Complainant’s DFW AIRPORT trademark. See RetailMeNot, Inc. v. Domain Admin / Private Registrations Aktien Gesellschaft, FA 1625879 (Forum Aug. 6, 2015) (finding confusing similarity while Respondent merely transposed the letters “a” and “t” in the RETAILMENOT mark in crafting the <reatilmenot.com> domain name.).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <dwfairport.com> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name ultimately identifies the domain name’s registrant as “Elisa Browning.” The record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <dwfairport.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Furthermore and as elaborated below regarding bad faith, Respondent is attempting to trade on Complainant’s trademark to divert internet users looking for Complainant to a website controlled by Respondent. Respondent’s website shows what appear to be pay-per-click links to related services such as “Flights Departures,” “Dallas Airport,” “Flights Arrivals,” “DFW Airport Terminal Map, and “Pay Ticket.” Respondent’s use of the domain name in this manner constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Respondent’s <dwfairport.com> domain name was registered and used in bad faith. As discussed below without limitation, Policy ¶ 4(b) specific bad faith circumstances, as well as other circumstance are, present which permit the Panel to conclude that Respondent acted in bad faith regarding the at-issue domain name pursuant to paragraph 4(a)(iii) of the Policy.
First and as mentioned above regarding rights and legitimate interests, Respondent’s at-issue domain name addresses a website displaying links to third parties. Respondent’s is likely to financially benefit from such links via a pay-per-click arrangement or otherwise. Such circumstances indicate Respondent’s bad faith registration and use of the <dwfairport.com> domain name pursuant to Policy ¶ 4(b)(iv). See Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). Respondent is intent on passing itself off as Complainant and, inter alia, refers to “Dallas Airport” and “DFW Terminal Map” on the <dwfairport.com> website further demonstrating Respondent’s bad faith under Policy ¶ 4(b)(iv). See MidFirst Bank v. Smith, FA0907001274302 (Forum Aug. 31, 2009) (use of the disputed domain name to pass oneself off as the Complainant constitutes bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv)).
Second, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark, or perhaps a domain name or other mark sponsored by Complainant, and then registers the resulting string in a domain name. The domain name registrant hopes that internet users will: 1) inadvertently type the malformed string when searching for content related to the domain name’s target trademark and/or, 2) in viewing the domain name will confuse the domain name with its target trademark. The registrant then may use the confusion to inappropriately capitalize on the target trademark’s goodwill. Respondent’s <dwfairport.com> domain name is nearly identical to Complainant’s trademark. Respondent’s second-level domain name only differs from Complainant’s DFW AIRPORT trademark by the transposition of two of its letters and omission of its domain name-impermissible space. Respondent’s domain name is thus prone to being mistakenly typed when attempting to type Complainant’s trademark or misread as being associated with Complainant when it is not. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Next, Respondent has suffered multiple adverse UDRP decisions as a respondent. For example, See Cabela's, Inc. v. Elisa Browning, FA1009001345984 (Forum Nov. 7, 2010). There, as well as in other decisions, Respondent is shown to have exhibited typosquatting conduct similar to that discussed elsewhere herein. Respondent’s prior cybersquatting shows “a pattern” pursuant to Policy ¶ 4(b)(ii) and suggests Respondent’s bad faith in the instant case. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)); see also, Bullock v. Network Operations Ctr., FA 1269834 (Forum Aug. 10, 2009) (“Complainant contends that Respondent has a longstanding history of cybersquatting . . . . The Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(ii).”).
Finally, Respondent registered <dfw-international-airport.com> knowing that Complainant had trademark rights in the DFW AIRPORT trademark. Respondent’s prior knowledge is evident given the mark’s notoriety and extensive use as well as from the overt misspelling of Complainant’s mark in the domain name and the <dwfairport.com> website’s hosting of competitive links as mentioned above. See Finex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). It follows that Respondent intentionally registered the at-issue domain name so that it might improperly exploit the domain name’s trademark value rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <dwfairport.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dwfairport.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 15, 2020
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