Southwest Airlines Co. v. king mar / Legal Hasan / Larry Airlines / LaozEllison
Claim Number: FA2111001972432
Complainant is Southwest Airlines Co. (“Complainant”), represented by Craig E. Radoci, Jr. of Holland & Hart LLP, Colorado, USA. Respondent is king mar / Legal Hasan / Larry Airlines / LaozEllison (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <southwestairlinesjobs.com> and <southwestairlinejobs.com>, registered with OwnRegistrar, Inc. and NameCheap, 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.
Charles A. Kuechenmeister, Panelist.
Complainant submitted a Complaint to the Forum electronically on November 8, 2021; the Forum received payment on November 8, 2021.
On November 9, 2021, OwnRegistrar, Inc. confirmed by e-mail to the Forum that the <southwestairlinesjobs.com> domain name is registered with it, and NameCheap, Inc. confirmed by e-mail to the Forum that the <southwestairlinejobs.com> domain name is registered to it. The registrars have confirmed that Respondent is the current registrant of the domain names (the Domain Names), and that Respondent is bound by their respective registration agreements 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 November 16, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of December 6, 2021 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@southwestairlinejobs.com, postmaster@southwestairlinesjobs.com. Also on November 16, 2021, 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 December 13, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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 Names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE DOMAIN NAMES AND RESPONDENTS
The Complaint names two persons as Respondents and relates to two Domain Names. Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant alleges that both Domain Names are effectively controlled by the same person. It notes that the Domain Names are identical except for an “s” added at the end of “airline” in one of the Domain Names, they were registered within two weeks of each other (WHOIS information for both Domain Names submitted as Complaint Exhibit 1), the <southwestairlinejobs.com> Domain Name previously redirected to the web site resolving from the other Domain Name, and the clearly fictitious and fanciful naming convention for the registrant of each Domain Name is the same. The names and addresses of the registrants shown in the WHOIS information are different but the evidence of commonality overcomes these differences. The Panel finds that both Domain Names are registered to the same person or entity or are under common control. Caterpillar v. Arendt, FA1805001789701 (Forum July 2, 2018), (“The Panel finds that the domain names are under common control because the three domain names are constructed in the same manner, were registered on the same date with the same registrar, have been used in the same way, and use Cloudfare servers. Also, the registrant used the same privacy service for all three domain names. These elements are sufficient to find that the domain names were registered by the same domain name holder.”). The Panel finds that the Domain Names are registered by the same holder or are under common control, and will proceed as to both of them. References to “Respondent” in this Decision, while in the singular, refer to both named Respondents.
A. Complainant
Complainant is a well-known airline company. It has rights in the SOUTHWEST AIRLINES mark through its registrations of that mark with various trademark agencies throughout the world, including the United States Patent and Trademark Office (“USPTO”). Respondent’s <southwestairlinejobs.com> and <southwestairlinesjobs.com> Domain Names are identical or confusingly similar to Complainant’s mark as they incorporate the mark, merely adding the word “jobs” and the “.com” generic top-level domain (“gTLD”) and deleting the “s” from “airlines” in one case.
Respondent has no rights or legitimate interests in the Domain Names. It is not commonly known by them, it is not affiliated with Complainant and Complainant has not authorized or licensed Respondent to use its SOUTHWEST AIRLINES mark, and Respondent is not using the Domain Names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, it passes off as Complainant in furtherance of a phishing scheme on the web site resolving from one of the Domain Names, and is currently making no active use of the other.
Respondent registered and is using the Domain Names in bad faith. Respondent passes off as Complainant in furtherance of a phishing scheme on one Domain Name’s resolving website, and inactively holds the other Domain Name. Also, Respondent registered the Domain Names with actual knowledge of Complainant’s rights in the SOUTHWEST AIRLINES mark.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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”), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
The SOUTHWEST AIRLINES mark was registered to Complainant with various trademark agencies throughout the world, including the USPTO (Reg. No. 1,738,670 registered on December 8, 1992) (TESS record submitted with Complaint Exhibit 3). Complainant’s registration of its SOUTHWEST AIRLINES mark with the USPTO establishes its rights in that mark for the purposes of Policy ¶ 4(a)(i). Rackspace US, Inc. v. Russell Harrower, FA 1592005 (Forum Jan. 5, 2014) (“As stated above, Complainant has shown rights in the mark RACKSPACE by virtue of its registrations in the US, Europe, Mexico, Turkey, as well as in Australia, Respondent’s country of origin. All of the trademark registrations predate the registration of the disputed domain name by the Respondent and are sufficient evidence for Complainant’s rights under Policy ¶ 4(a)(i).”).
Respondent’s <southwestairlinejobs.com> and <southwestairlinesjobs.com> Domain Names are identical or confusingly similar to Complainant’s SOUTHWEST AIRLINES mark. They both incorporate the mark in its entirety, merely adding the generic term “jobs” and the “.com” gTLD and deleting the “s” at the end of “airlines” in one of the Domain Names. These changes do not distinguish the Domain Names from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”), Lockheed Martin Corporation v. toyosei maruyama, FA 1620489 (Forum July 7, 2015) (“Simply removing the letter ‘s’ from a mark in the creation of a domain name still creates a confusingly similar domain name.”). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Names.
For the reasons set forth above, the Panel finds that the Domain Names are identical or confusingly similar to the SOUTHWEST AIRLINES mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(ii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names because (i) it has not been commonly known by the Domain Names, (ii) It is not affiliated with Complainant and Complainant has not authorized Respondent to use its mark, and (iii) Respondent is not using the Domain Names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use because it uses one of them to impersonate Complainant for a fraudulent phishing scheme and is making no active use of the other. These allegations are addressed as follows:
The WHOIS information furnished to the Forum by the registrar lists “Larry Airlines / LaozEllison” as the registrant of the <southwestairlinesjobs.com> Domain Name, and “king mar / Legal Hasan” as the registrant of the <southwestairlinejobs.com> Domain Name. None of these names bears any resemblance to the Domain Names. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no response has been filed, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Panel is satisfied that the Respondent has not been commonly known by either Domain Name.
Complainant states that Respondent is not affiliated or associated with it and that it has never authorized or permitted Respondent to use its mark. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue 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.”).
Amended Complaint Exhibit 17 is a screenshot of the web site resolving from the <southwestsairlinesjsobs.com> Domain Name. It features the name “Southwest” with the heart logo in the banner and a photo of one of Complainant’s airplanes on the first page, and photos of a number of Complainant’s employees. The message “Southwest Airline is Hiring” also appears on the first page. This page uses the same kind of imagery of Complainant’s employees that appears on Complainant’s Careers web site located at <careers.southwestair.com> (Complaint Exhibit 13). Amended Complaint Exhibit 18 is a screenshot of an application form appearing on one of the pages on Respondent’s web site. It is directed at persons who might wish to apply for employment with Complainant and solicits information such as the person’s name, address, email address, phone number, and social security number. It also requests the “applicant” to submit a copy of his or her state—issued photo ID. From this it is evident that Respondent is using this web site to pass off as Complainant and engage in phishing, which is a fraudulent attempt to obtain sensitive information such as usernames, passwords and credit card details by disguising oneself as a trustworthy entity in an electronic communication. Using a confusingly similar domain name to pass off as a complainant and engage in phishing is neither a bona fide offering of goods or services for the purposes of Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use for the purposes of Policy ¶ 4(c)(iii). 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).”), Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Amended Complaint Exhibit 19 is a screenshot of the page resolving from the <southwestairlinejobs.com> Domain Name. The only content appearing here is the message “This site can’t be found.” Respondent is clearly making no active use of it. Passive holding of an infringing domain name does not confer rights under Policy ¶¶ 4(c)(i) or (iii), as it does not qualify as a bona fide offering of goods or services or a legitimate noncommercial or fair use. Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”).
Complainant has made its prima facie case. On the evidence presented, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Names.
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or the respondent has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s web site or location or of a product of service on the respondent’s web site or location.
The evidence of Respondent’s use of the Domain Names discussed above in connection with the rights or legitimate interests analysis also supports a finding of bad faith use and registration, based upon the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, Respondent is clearly using the confusingly similar <southwestairlinesjobs.com> Domain Name to attract, for commercial gain, Internet users to its web sites by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation or endorsement of its web sites. Respondent, posing as Complainant, seeks to obtain sensitive personal and private information and images of state-issued ID cards from visitors to its site who believe they are dealing with Complainant. The potential for theft and other mischief is obvious. Once Respondent obtains a social security number and image of a state-issued ID card, it is able to steal the identity of the victim and eventually obtain credit or cash belonging to that person. The evidence strongly suggests that this was Respondent’s intent when it registered the Domain Names and continues to be its intent as it uses them. It is clear evidence of bad faith. Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”).
As discussed above, Respondent registered and is using the <southwestairlinesjobs.com> Domain Name to phish for sensitive private information of visitors to its web site. This fraudulent phishing scheme also qualifies on its own as evidence of bad faith registration and use. Policy ¶ 4(b) acknowledges that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldwcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). The non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and passing oneself off as a complainant to phish for sensitive private information from others has often been held to evidence bad faith registration and use. Klabzu ba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”), McKinsey & Company, Inc., and McKinsey Holdings, Inc. v. Privacy Protection, report abuse to / Registrar: DELTA-X Ltd., FA1409001580883 (Forum Oct. 25, 2014) (holding that the respondent had engaged in phishing, which is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii), when the respondent used the disputed domain name in an attempt to obtain Internet users’ personal information including their driver’s license number and name).
The <southwestairlinejobs.com> Domain Name resolves to an inactive web site. Again, the non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and passive holding of a confusingly similar domain name is also evidence of bad faith. Caravan Club v. Mrgsale, FA 95314 (Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that [failure to make an active use] of a domain name permits an inference of registration and use in bad faith).
Finally, it is evident that Respondent had actual knowledge of Complainant’s marks in July 2021, when it registered the Domain Names (WHOIS report submitted as Complaint Exhibit 1 shows creation dates). Complainant has been using its mark since 1971 (TESS Report submitted with Complaint Exhibit 3) and its mark are well-known (articles about Complainant submitted as Complaint Exhibits 10, 11 and 12). Respondent’s <southwestairlinesjobs.com> web site copies Complainant’s name and logo exactly and passes off as Complainant’s, and the other Domain Name was created by the same person or entity. In light of the open ended, non-exclusive nature of Policy ¶ 4(b), registering a confusingly similar domain name with actual knowledge of a complainant’s rights in a mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Names in bad faith within the meaning of Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <southwestairlinesjobs.com> and <southwestairlinejobs.com> Domain Names be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
December 15, 2021
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