The American Automobile Association, Inc. v. Frederick A. Simpson, CPA
Claim Number: FA0711001105681
Complainant is The American Automobile Association, Inc. (“Complainant”), represented by Roger
A. Ford, of Covington & Burling LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <aaafastravel.com> and <aaa-fastravel.com>, registered with Godaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 31, 2007; the National Arbitration Forum received a hard copy of the Complaint on November 2, 2007.
On November 1, 2007, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <aaafastravel.com> and <aaa-fastravel.com> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On November 8, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 28, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@aaafastravel.com and postmaster@aaa-fastravel.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 30, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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.
A. Complainant makes the following assertions:
1. Respondent’s <aaafastravel.com> and <aaa-fastravel.com> domain names are confusingly similar to Complainant’s AAA mark.
2. Respondent does not have any rights or legitimate interests in the <aaafastravel.com> and <aaa-fastravel.com> domain names.
3. Respondent registered and used the <aaafastravel.com> and <aaa-fastravel.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The American Automobile Association, Inc., is an American automative and travel club that has operated since 1903. Complainant offers a wide variety of travel-related products and services. Complainant holds numerous registrations for its AAA mark with the United States Patent and Trademark Office (“USPTO”) (i.e. Reg. No. 703,556 issued August 30, 1960). Additionally, Complainant owns many domain names incorporating its AAA mark, including the <aaa.com>, <aaa.biz> and <aaatravel.com> domain names.
Respondent registered the <aaafastravel.com> and <aaa-fastravel.com> domain names on September 21, 2006. The <aaafastravel.com> domain name redirects Internet users to a website that displays travel service information in direct competition with Complainant, and the <aaa-fastravel.com> domain name resolves to a website that displays hyperlinks to various third-party websites in direct competition with Complainant.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
The Panel finds that Complainant’s numerous and long-standing trademark registrations with the USPTO sufficiently establish Complainant’s rights in the AAA mark for the purposes of Policy ¶ 4(a)(i). See Enter. Rent-A-Car Co. v. David Mizer Enters., Inc., FA 622122 (Nat. Arb. Forum Apr. 14, 2006) (finding that the complainant’s registration of the ENTERPRISE, ENTERPRISE RENT-A-CAR, and ENTERPRISE CAR SALES marks wit the USPTO satisfies the requirement of demonstrating rights in the mark under consideration pursuant to Policy ¶ 4(a)(i)); see also Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office).
Respondent’s <aaafastravel.com> and <aaa-fastravel.com> domain names contain Complainant’s AAA mark in its entirety along with the addition of the term “fastravel” which is a misspelling of the terms “fast” and “travel,” along with a generic top-level domain. The <aaa-fastravel.com> domain name also contains a hyphen. The Panel finds that none of these modifications sufficiently distinguish the disputed domain names from Complainant’s mark, as the use of the term “travel” has a direct relationship to Complainant’s business. Thus, the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Sports Auth. Mich. Inc. v. Batu 5, FA 176541 (Nat. Arb. Forum Sept. 23, 2003) (“The addition of a hyphen to Complainant's mark does not create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis.”); see also Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant bears the burden of presenting a prima facie case that Respondent lacks rights and legitimate interests in the <aaafastravel.com> and <aaa-fastravel.com> domain names, and once Complainant meets its burden, the burden then shifts to Respondent to show it has rights or legitimate interests with regards to the disputed domain names. The Panel finds that Complainant has successfully met its burden. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that, absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the respondent to demonstrate that it has rights or legitimate interests).
An examination of the evidence in the record gives no indication that Respondent is or has ever been known by the <aaafastravel.com> and <aaa-fastravel.com> domain names, and there is no evidence that Complainant has authorized Respondent to use its mark. Thus, the Panel finds that Respondent is not commonly known by the <aaafastravel.com> and <aaa-fastravel.com> domain names under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns, Inc. v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent is not commonly known by the <cigaraficionada.com> domain name because the WHOIS information lists the registrant of the domain name as as “WORLDTRAVELERSONLINE.COM,” and no other evidence exists in the record indicating that the respondent is known by the domain name); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").
Respondent is using the <aaafastravel.com> domain name to redirect Internet users to a separate domain name that resolves to a website that displays a travel business in direct competition with Complainant. The Panel holds that such use does not constitute 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). See DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).
With regards to the <aaa-fastravel.com> domain name, Respondent is using the disputed domain name to display a website that contains hyperlinks to various third-party websites in direct competition with Complainant, presumably for Respondent’s own commercial benefit through the accrual of click-through fees. Such use 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 Charles Letts & Co. v. Citipublications, FA 692150 (Nat. Arb. Forum July 17, 2006) (finding that the respondent’s use of a domain name that was confusingly similar to the complainant’s mark to display links to the complainant’s competitors did not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that use of the complainant’s mark “as a portal to suck surfers into a site sponsored by [the respondent] hardly seems legitimate”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s use of the <aaafastravel.com> and <aaa-fastravel.com> domain names to display competing travel services, either directly or through the advertising of other websites, constitutes a disruption of Complainant’s business and is thus evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate websites that compete with the complainant’s business).
Respondent’s disputed domain names, which are confusingly similar to Complainant’s mark, are capable of creating a likelihood of confusion as to Complainant’s source, sponsorship, affiliation and endorsement of the <aaafastravel.com> and <aaa-fastravel.com> domain names and resulting websites. As the disputed domain names also resolve to websites that have uses that commercially benefit Respondent, the Panel finds evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”); see also MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aaafastravel.com> and <aaa-fastravel.com> domain names be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: December 11, 2007
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