American Airlines, Inc. v.
Portfolio Brains, LLC
Claim Number: FA0902001247273
PARTIES
Complainant is American Airlines, Inc. (“Complainant”), represented by Kristin
Jordan Harkins, of Conley Rose, P.C.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aavaction.com>, registered with Nameking.com,
Inc.
PANEL
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.
Dr. Reinhard Schanda as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on
On February 12, 2009, Nameking.com, Inc. confirmed by e-mail to the
National Arbitration Forum that the <aavaction.com> domain name is
registered with Nameking.com, Inc. and
that the Respondent is the current registrant of the name. Nameking.com,
Inc. has verified that Respondent is bound by the Nameking.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 February 17, 2009, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of March 9, 2009 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@aavaction.com by
e-mail.
A Response was received on March 9, 2009. However because this Response was received
not in hard copy the National Arbitration Forum does not consider this Response
to be in compliance with ICANN Rule 5.
Complainant submitted an Additional Submission to the National
Arbitration Forum on March 16, 2009, which was deemed timely in accordance with
the National Arbitration Forum’s Supplemental Rule 7.
On March 18, 2009, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Dr. Reinhard Schanda as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
Complainant, American Airlines, Inc. is engaged in the business of air transportation and related services and is one of the world’s largest airlines. Complainant has acquired a nationwide reputation for quality goods and services, and has accumulated substantial public goodwill. In the course of its business, Complainant has acquired extensive rights in numerous trade names, trademarks and service marks. Complainant advertises, promotes and sells its goods and services directly to the ultimate consumer as well as through travel agencies and other third parties. The methods of advertising, promoting and sales are many, including on the Internet.
With respect to its air transportation services, Complainant has adopted and has developed substantial rights and goodwill in the mark AA®, as used alone and with related designs, which Complainant has continuously used since at least as early as December 1935.
Complainant has also adopted and has developed substantial rights and goodwill in the mark AA.COM®, as used alone and with related designs, which Complainant has continuously used since at least as early as February 5, 1998.
Moreover,
Complainant has adopted and has developed substantial rights and goodwill in an
entire family of registered marks that incorporate the term “AA” with other
words and designs, including the marks AA AMERICAN (and Design)®, AA PRIORITY
PARCEL SERVICE (and Design)®, AADVANTAGE®, AAIRPASS (and Design)®, AANYTIME®,
HOSPITAALITY AWARD (and Design) ®, HOSPITAALITY (and Design) ®, AASSOCIATION
FARES (and Design)®, BUSINESS EXTRAA (and Design)®, BUYAAMILES®, SHAREAAMILES®
and DEPOSITAAMILES (and Design)®. Complainant has used and continues to
use all of these marks in commerce in connection with air transportation
services and related services in the
Complainant has devoted
considerable efforts to advertise and promote its services under the mark AA®
and has developed widespread recognition and fame in the marketplace for the
services offered under the mark AA®. Because AA® is a
well-known and famous mark by which Complainant, American Airlines, Inc., is
identified, and also as a result of longstanding, continuous use throughout the
United States and the world since at least as early as December 1935, AA® is accepted by the purchasing public as distinguishing
Complainant’s air transportation and related travel services from the goods and
services of others.
Complainant
has also extensively advertised and promoted its services offered under the
mark AA® on the Internet. Complainant is the registrant of the <aa.com>
and <aavacations.com> domain names, both
of which contain the Complainant’s mark AA®.
Moreover, Complainant has developed substantial common law rights in the service mark AAVACATIONS.COM™, which is prominently displayed on the website resolving from Complainant’s <aavacations.com> domain name to advertise and promote Complainant’s services.
Complainant has enjoyed continuous and substantially exclusive use of the service mark AAVACATIONS.COM™ since at least as early as October 1997. Through the <aavacations.com> domain name, travel services sold in connection with the service mark AAVACATIONS.COM™ total approximately $235,000,000 in annual sales, and these sales are associated with over 277,000 separate transactions. In addition, the website resolving from the <aavacations.com> domain name is viewed by Internet users over 6,900,000 times annually. As such, the AAVACATIONS.COM™ mark has come to be accepted by the purchasing public as distinguishing Complainant’s air transportation and related travel services from the goods and services of others.
Complainant’s presence on the Internet promotes Complainant’s AA® and AAVACATIONS.COM™ air transportation and related travel services, and identifies Complainant as the source of such services. Complainant has acquired and now enjoys substantial goodwill and a valuable reputation through its registered AA® mark, through its common law AAVACATIONS.COM™ mark, and through its <aavacations.com> domain name. The maintenance of high standards of quality and excellence for Complainant’s air transportation services and related travel services has contributed to this valuable goodwill and reputation. The goodwill embodied in Complainant’s family of marks, and consequently Complainant’s valuable reputation and credibility in the airline industry, depend on the integrity of the marks as identifying Complainant as the sole source of the air transportation and related travel services, and not any other source.
Complainant contends that the
<aavaction.com> domain name is
confusingly similar to Complainant’s registered AA® mark because the domain name incorporates Complainant’s
mark in its entirety and merely adds a misspelled descriptive term “vaction” plus
the top level domain “.com”. Thus, the
dominant portion of the disputed domain name is identical to Complainant’s mark
AA®, and adding a descriptive term fails to
detract from the overall commercial impression provided by the AA® mark.
Similarly, the <aavaction.com> domain name is essentially identical to Complainant’s common law mark AAVACATIONS.COM™ because the domain name differs from Complainant’s mark only by a deleted letter “a” and a deleted letter “s”, thereby misspelling the word “vacations.” Thus, the dominant portion of the disputed domain name is essentially identical to Complainant’s mark AAVACATIONS.COM™, and misspelling the word “vacations” fails to detract from the overall commercial impression provided by the AAVACATIONS.COM™ mark.
Respondent’s registration and use of the disputed domain name, which is confusingly similar to Complainant’s registered AA® mark, and also represents likely spelling and typographical errors of Complainant’s common law AAVACATIONS.COM™ mark and <aavacations.com> domain name, is misleading and causes confusion to consumers who are diverted away from the website resolving from Complainant’s <aavacations.com> domain name where Internet users can book airline tickets and make related travel plans through Complainant, American Airlines, Inc. Clearly, Respondent has registered a confusingly similar variation of Complainant’s marks and domain name so that Internet users attempting to reach Complainant’s <aavacations.com> domain name will be redirected to Respondent’s web site.
Complainant contends that Respondent has not and does not use the disputed domain name in connection with a bona fide offering of goods or services. The <aavaction.com> domain name resolves to a web site featuring category links that are listed under the heading “Related Searches,” including the categories “Vacation Packages”, “Caribbean Travel”, “Airline Tickets”, “Las Vegas Hotel”, “Las Vegas”, “American Airlines Vacations”, “Vacations”, “Hotels”, “St Johns” and “Orlando Vacation”. When an Internet user clicks on any of these category links, the <aavaction.com> domain name brings up a “Sponsored Listing” of various commercial web sites offering travel and vacation planning services that directly compete with Complainant, and from which Respondent presumably receives referral fees.
According to Complainant no available evidence suggests that Respondent has ever been commonly known by the disputed domain name. The domain name at issue is not, nor could it be contended to be, the nickname of Respondent, Portfolio Brains LLC, or in any other way identified with or related to a legitimate interest of Respondent.
Complainant has not licensed or otherwise permitted Respondent to use any of Complainant’s marks or to apply for or use any domain name incorporating any of Complainant’s marks, including Complainant’s famous mark AA® and Complainant’s common law mark AAVACATIONS.COM™.
The use by Respondent of the <aavaction.com> domain name is an opportunistic attempt to attract Complainant’s customers to Respondent’s web site by creating a likelihood of confusion with Complainant. Respondent is profiting from Internet users who unintentionally misspell Complainant’s common law mark AAVACATIONS.COM™ when attempting to access Complainant’s <aavacations.com> domain name. Respondent’s use of a domain name that is confusingly similar to Complainant’s marks for the purpose of diverting Internet users to Respondent’s site for its own commercial gain is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
According to Complainant, Respondent is a “typo domain name pirate” or “typosquatter” because it registered and is using a domain name comprising a misspelled variation of Complainant’s <aavacations.com> domain name based on Complainant’s famous AA® mark and Complainant’s common law mark AAVACATIONS.COM™. Typosquatting is evidence of bad faith registration and use in violation of Policy ¶ 4(a)(iii). The registration and use by Respondent of the domain name at issue also clearly disrupts Complainant’s business by diverting Internet traffic away from Complainant’s <aavacations.com> domain name.
Moreover, given that the disputed domain name resolves to a web site featuring links to third-party websites from which Respondent presumably receives referral fees, and most of these third-party web sites offer air transportation and other travel related services, Respondent clearly registered the <aavaction.com> domain name for the primary purpose of intentionally attempting to attract, for commercial gain, Internet users to Respondent’s web site or other online locations, by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation or endorsement of Respondent’s web site or of a product or service on Respondent’s website in violation of ICANN Policy ¶ 4(b).
Upon information and belief, Respondent registered the <aavaction.com> domain name with knowledge of Complainant’s rights in the AA® and the AAVACATIONS.COM™ marks, as well as Complainant’s rights in the <aavacations.com> domain name. Respondent’s registration of a domain name that contains Complainant’s famous AA® mark, and merely misspells Complainant’s common law AAVACATIONS.COM™ mark, with knowledge of Complainant’s rights in these marks, is evidence of bad faith registration and use in violation of ICANN Policy ¶ 4(a)(iii).
Respondent has registered numerous domain names and has been the subject of multiple ICANN proceedings. In particular, Respondent has engaged in a pattern of conduct of registering domain names that incorporate well-known trademarks, which evidences bad faith registration and use. To date, two (2) National Arbitration Forum panels have decided that Respondent registered and used three (3) domain names in bad faith, and therefore ruled that the domain names should be transferred from Respondent to the rightful trademark owners. Further, a third National Arbitration Forum panel ruled for the transfer of three (3) domain names to a complainant after Respondent acquiesced to such transfer in its Answer.
Respondent’s conduct, knowing full well that it has no right to use Complainant’s marks, demonstrates that it is knowingly, willfully and with a bad faith intent, trading on the value of, and interfering with, Complainant’s right to use its marks in commerce.
Respondent contends that it lacked any bad faith in the registration of the Domain Names at issue. Upon learning of this matter and in an effort to resolve this matter expeditiously, Respondent contacted Complainant multiple times, including by undersigned counsel, to offer a voluntary transfer of the domain name at issue. To date, however, Complainant has not accepted this proposal.
Therefore, without admitting fault or liability and without responding substantively to the allegations raised by Complainant herein, to expedite this matter for the Panel so that its time and resources are not otherwise wasted on this undisputed matter, Respondent stipulates that it is willing to voluntarily transfer the Domain Names to Complainant. For the reasons stated below, Respondent respectfully requests that the transfer be ordered without findings of fact or conclusions as to Policy 4(a) other than the Domain Names be transferred.
In numerous prior UDRP decisions, Panels have consistently ruled that when a complaint has been filed and the respondent consents to the transfer of the domain name, it is inappropriate to issue any decision other than simply ordering the transfer of the domain name. Such panels consistently hold that it would be improper to issue any findings of fact in such cases.
Accordingly, Respondent requests that the Domain Name be transferred to Complainant without further findings of fact or liability, including those related to the elements set forth in Paragraph 4(a) UDRP Policy.
In its additional submission Complainant contends that despite the Respondent’s attempts to portray itself as a helpful and cooperative party ready and willing to efficiently resolve this matter, the Respondent is attempting to divert the Panel’s attention away from its egregious behavior and avoid an adverse finding that reveals Respondent’s illegitimate and bad faith use of the <aavaction.com> domain name. Complainant responds to each of Respondent’s points, as follows:
According to Complainant, Respondent attempts to mislead the Panel into believing that its action “lacked any bad faith in the registration of the domain name at issue” by expressing a willingness to transfer the domain name to Complainant after the UDRP Complaint was filed. Thus, Respondent tries to focus the Panel’s attention solely on its conduct following the filing of the UDRP Compliant. However, it is Respondent’s pre-filing conduct of which is complained, namely, Respondent’s bad faith registration and use of a confusingly similar domain name to deliberately redirect Internet users to third-party commercial web sites offering services in direct competition with Complainant. Through this conduct, Respondent benefits by receiving click-through fees while Complainant suffers due to interference with its business and injury to its mark and reputation.
Respondent offers no explanation regarding how it could have legitimately conjured up the <aavaction.com> domain name, which represents nothing more than a typographical error of Complainant’s <aavacations.com> domain name. There can be no other reasonable explanation. Thus, Respondent is a domain name pirate and typosquatter, and this fact alone shows that Respondent registered and is holding the domain name in bad faith in violation of Policy ¶ 4(a)(iii). Respondent has failed to provide any other basis that would legitimize a claim to the disputed domain name.
Therefore,
notwithstanding Respondent’s willingness to transfer the domain name to
Complainant, Respondent’s intentional and continuing use of the disputed
domain name to cause confusion for its own benefit clearly evidences bad faith registration and use of the
disputed domain name. Respondent
deliberately registered the <aavaction.com> domain
name with knowledge of Complainant’s
trademark rights, and Respondent has made a lucrative business out of
collecting click-through fees to the detriment of Complainant, thus evidencing
Respondent’s bad faith conduct.
Further
evidence that Respondent did not register the currently disputed domain name in
good faith was uncovered in a cursory search by Complainant for other domain
names registered and/or currently held by Respondent that are based on
trademarks of Complainant. For example,
the search revealed that Respondent holds and operates the <americanairlinespr.com>
domain name, which clearly comprises Complainant’s famous AMERICAN AIRLINES mark. Considering that the AMERICAN AIRLINES mark
(U.S. Reg. No. 514,294) was first used in commerce at least as
early as April of 1934 and that the <americanairlinespr.com> domain name
was registered on
In its Response, Respondent makes no effort to dispute any of the allegations presented in Complaint and instead urges the Panel to refrain from making any formal finding that Respondent acted in bad faith and instead order the immediate transfer of the disputed domain name without a decision on the merits.
Respondent’s approach raises several questions: why is Respondent so insistent that the Panel forego a decision on the merits, and why is it so willing to transfer the disputed domain name? Obviously, Respondent recognizes that it cannot offer any plausible explanation for its selection of the disputed domain name or the web site content or otherwise defend against the allegations set out in the Complaint. As such, Respondent’s ready willingness to transfer the disputed domain name to Complainant evidences that it has no rights or legitimate interests in the disputed domain name, and that it registered and is using the disputed domain name in bad faith. Respondent employs the tactic of readily agreeing to transfer the disputed domain name in an effort to avoid an adverse decision against it. Further, it is likely that Respondent recognizes that as more domain name disputes are decided against it on the merits, in future domain name disputes it will become increasingly difficult for Respondent to assert its lack of bad faith in the face of a growing record of decisions that indicate a pattern and/or history of bad faith registration and bad faith use.
Respondent is a cybersquatter, and it should not be permitted to avoid a decision on the merits merely because it has agreed to transfer the disputed domain name. Based on Complainant’s review of the NAF Decisions to date, Respondent has been the respondent in three Decisions prior to the current dispute, all three of which resulted in transfer of the domain name.
Respondent’s filing of a stipulation to transfer does not preclude the Panel from ruling on the merits. Indeed, prior panels have recognized that the “consent-to-transfer” tactic employed by a respondent is but one way cybersquatters avoid adverse findings against them, and so these Panels have determined that it is appropriate to do the analysis under the Policy.
Further, in other proceedings before the NAF in which Complainant was the complainant, Complainant has successfully obtained decisions on the merits of the case even where the respondents of those proceedings agreed to transfer while also requesting that the Panel not enter a decision on the merits.
According to Complainant a decision
on the merits is warranted in the present case to prevent Respondent from
avoiding the consequences associated with its cybersquatting and typosquatting
practices. It will be appreciated,
however, that even in the absence of a decision with language directed to the
merits of the case, Respondent’s consent to transfer
is deemed as being made by the Panel equally on the merits as if each of the
required elements of ICANN Policy ¶ 4(a) were discussed in detail. Merely transferring the disputed domain name
without finding that Respondent has violated the three elements of ICANN Policy
¶ 4(a) would allow Respondent to continue its infringing practices largely
without consequence or penalty. Such a
course of action is not only inconsistent with the Policy, but also works
injustice on Complainants.
FINDINGS
The Panel finds that:
1.
the <aavaction.com>
domain name is confusingly similar to the Complainant’s marks,
2.
Respondent
has not established any right or legitimate interest in the <aavaction.com>
domain name and
3. Respondent has registered and is using the <aavaction.com>
domain name in bad faith.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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.”
Although Respondent has provided a Response that
was deficient because a hard copy of the Response was not received before the
Response deadline, the Panel decides to consider Respondent’s submission. See Strum v. Nordic Net Exch. AB, FA 102843 (Nat. Arb. Forum Feb.
21, 2002) (“[R]uling a Response inadmissible because of formal deficiencies
would be an extreme remedy not consistent with the basic principles of due
process. . . ."); see also J.W. Spear & Sons PLC v. Fun League
Mgmt., FA 180628 (Nat. Arb. Forum Oct. 17, 2003) (finding that where
the respondent submitted a timely response electronically, but failed to submit
a hard copy of the response on time, “[t]he Panel is
of the view that given the technical nature of the breach and the need to
resolve the real dispute between the parties that this submission should be
allowed and given due weight”).
Preliminary Issue: Consent to Transfer
Respondent consents to transfer
<aavaction.com>
domain name to Complainant.
Complainant rather stresses in its Additional Submission that it wishes
for a decision on the merits, and that Respondent’s consent to transfer was
made solely to thwart an adverse decision.
The Panel is of the view that the “consent-to-transfer” approach is but
one way for cybersquatters to avoid adverse findings against them. In Graebel Van Lines, Inc. v.
Respondent has admitted in his response to the complaint of Complainant that it is ready to offer the transfer without inviting the decision of the Panel in accordance with the Policy. However, in the facts of this case, the Panel is of the view that the transfer of the disputed domain name deserves to be along with the findings in accordance with the Policy.
Having given the matter due consideration, this Panel is also of the view that it is appropriate to do the analysis under the Policy and decides to rule this case on the merits.
Paragraph 4(a) of the Policy requires that the 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 the respondent is identical or confusingly similar to
a trademark or service mark in which the complainant has rights;
(2)
the 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.
Complainant asserts it has rights in the AA mark pursuant to Policy ¶ 4(a)(i) due its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 514,292 issued Aug. 23, 1949) and through it use of the mark in connection with its airline business. Complainant maintains a presence online through the website resolving from the <aavacations.com> domain name. The Panel finds that Complainant’s registration of the mark with the USPTO establishes its rights in the AA mark under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also UnitedHealth Group Inc. v. Hassan, FA 947081 (Nat. Arb. Forum May 17, 2007) (finding “no difficulty” in holding that the complainant had established rights in its asserted marks for the purposes of Policy ¶ 4(a)(i) through its trademark registrations with the USPTO).
Complainant asserts that the <aavaction.com>
domain name is confusingly similar to its AA mark pursuant to Policy ¶ 4(a)(i). Complainant
supports this assertion by pointing out that the <aavaction.com> domain
name incorporates Complainant’s entire AA mark merely adding a misspelled descriptive
term “vaction” plus the top level domain “.com.” The Panel is of the view that the <aavaction.com>
domain name is confusingly similar to Complainant’s AA mark pursuant to Policy
¶ 4(a)(i). See Isleworth Land Co. v.
Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t
is a well established principle that generic top-level domains are irrelevant
when conducting a Policy ¶ 4(a)(i) analysis.”); see also Am.
Express Co. v. MustNeed.com, FA
257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s
<amextravel.com> domain name confusingly similar to Complainant’s AMEX
mark because the “mere addition of a generic or descriptive word to a
registered mark does not negate” a finding of confusing similarity under Policy
¶ 4(a)(i)).
The complainant must show that the respondent has no rights or
legitimate interests in respect of the disputed domain name. The respondent
does not assume the burden of proof, but may establish a right or legitimate
interest in a disputed domain name by demonstrating in accordance with
paragraph 4(c) of the Policy:
(a) He has made
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 prior to the
dispute;
(b) He is commonly known by the domain name,
even if he has not acquired any trademark rights; or
(c) He intends to make a legitimate,
non-commercial or fair use of the domain name without intent for commercial
gain to misleadingly divert consumers or to tarnish the trademark.
The Panel determines that Complainant has discharged the onus of proof for the second criterion: Respondent has failed to demonstrate any legitimate right or interest.
According to the
majority of Panel decisions this Panel also takes the position that while
Complainant has the burden of proof on this issue, once Complainant has made a prima facie showing, the burden of
production shifts to Respondent to show by providing concrete evidence that it
has rights to or legitimate interests in the domain name at issue. See
Document Technologies, Inc. v. International Electronic Communications, Inc.,
D2000-0270 (WIPO
Complainant asserts it has not granted
Respondent any license to use its AA mark. The WHOIS information associated with the
disputed domain names lists Respondent as “Portfolio
Brains, LLC.” The Panel finds
that Respondent has not established rights or legitimate interests in the
disputed domain names under Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum
Complainant asserts that Respondent is using the disputed domain name
to resolve to a parking website that displays links to third-party websites
which are either unrelated or in direct competition with Complainant. Complainant further asserts that Respondent
receives click-through fees for the advertisements listed on the resolving
website. Since the Panel finds
Complainant’s arguments to be true, the Panel finds this 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 Fox
News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) (finding
that the respondent’s use of the disputed domain name to generate revenue via
advertisement and affiliate fees is not a bona fide offering of good or
services); see also Disney Enters., Inc.
v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the
operation of a pay-per-click website at a confusingly similar domain name was
not 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)).
Complainant asserts that
Respondent is using the disputed domain name to resolve to a website that
contains links for third-party websites, some of which directly compete with
Complainant. The Panel finds that
Respondent is using the <aavaction.com> domain name to divert
Internet users to Complainant’s competitors and thereby disrupt Complainant’s
business, constituting bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller,
D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted
business from the complainant to a competitor’s website in violation of Policy
¶ 4(b)(iii)); see
also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding
that the respondent registered and used the domain name <eebay.com> in
bad faith where the respondent has used the domain name to promote competing
auction sites).
According to Complainant, the
website that resolves from the <aavaction.com> domain name displays
advertisements and links to websites that are both related and unrelated to
Complainant’s marks. Complainant
contends that Respondent receives pay-per-click fees for these links and
advertisements. The Panel finds that
Respondent is taking advantage of the inherent confusion between the <aavaction.com>
domain name and Complainant’s AA
mark and <aavacations.com>
domain name for Respondent’s own financial gain. As a result the Panel concludes that
Respondent registered and used the disputed domain name in bad faith under
Policy ¶ 4(b)(iv).
See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aavaction.com> domain name be TRANSFERRED
from Respondent to Complainant.
Dr. Reinhard Schanda, Panelist
Dated: March 31, 2009
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