American Airlines v. Taranga Services Pty Ltd c/o Domain Admin
Claim Number: FA1001001302684
Complainant is American Airlines (“Complainant”), represented by Nathan
J. Muyskens, of Shook Hardy & Bacon LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <amreicanairlines.com>, registered with Moniker Online Services LLC.
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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 12, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 15, 2010.
On January 18, 2010, Moniker Online Services LLC confirmed by e-mail to the National Arbitration Forum that the <amreicanairlines.com> domain name is registered with Moniker Online Services LLC and that Respondent is the current registrant of the name. Moniker Online Services LLC has verified that Respondent is bound by the Moniker Online Services LLC 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 January 25, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 16, 2010 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@amreicanairlines.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 23, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <amreicanairlines.com> domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <amreicanairlines.com> domain name.
3. Respondent registered and used the <amreicanairlines.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Airlines, is one of the world’s largest airlines. Complainant holds registrations with the United States Patent and Trademark Office (“USPTO”) for the AMERICAN AIRLINES mark in association with its air transportation and air freight services (e.g., Reg. No. 514,294 issued August 23, 1949).
Respondent, Taranga Services Pty Ltd c/o Domain Admin, registered the <amreicanairlines.com> domain name on June 12, 2004. Respondent’s disputed domain name resolves to a website featuring links to other airline-related websites in 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.
Complainant owns multiple trademarks for its AMERICAN AIRLINES mark with the USPTO (Reg. No. 514,294 issued August 23, 1949). The Panel finds Complainant has established rights in the AMERICAN AIRLINES mark for the purposes of Policy ¶ 4(a)(i) through its trademark registrations with the USPTO. See Automotive Racing Products, Inc. v. Linecom, FA 836787 (Nat. Arb. Forum Dec. 21, 2006) (finding that the Complainant’s federal trademark registration established its rights in the mark under Policy ¶ 4(a)(i)); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant argues that Respondent’s disputed domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark because the disputed domain name is merely a misspelled version of Complainant’s mark: the “e” and the “r” in “American” have been transposed, the space between the words has been deleted, and a generic top-level domain (“gTLD”) has been added. The Panel finds a simple misspelling that merely transposes letters fails to distinguish Respondent’s disputed domain name from Complainant’s mark. See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the <wyndham.com> and <wyandham.com> domain names to be confusingly similar to the complainant’s WYNDHAM mark because the domain names merely transposed letters in the mark). The addition of a gTLD does not prevent the disputed domain name from being confusingly similar to the Complainant’s mark. See Trip Network Inc. v. Alveira, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The deleted space in the domain name is similarly irrelevant in a Policy ¶ 4(a)(i) analysis and does not create a domain name distinguishable from Complainant’s mark. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore the Panel finds that the disputed domain name <americangenerallifeinsurance.com> is confusingly similar to the complainant’s AMERICAN GENERAL mark.”). Therefore, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant meets its burden of establishing a prima facie case, the burden then shifts to Respondent to demonstrate its rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). The Panel finds that Complainant has adequately established a prima facie case in these proceedings. Since Respondent failed to respond to the allegations against it, the Panel may assume that Respondent lacks any rights and legitimate interests in the disputed domain name. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise). The Panel, however, elects to consider the evidence in record in light of the Policy ¶ 4(c) factors to determine if Respondent has any rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent is not commonly known by
the disputed domain name because the WHOIS information for the disputed domain
name does not reflect that Respondent is commonly known by the disputed domain
name. The Panel finds this evidence,
without other evidence showing that Respondent is commonly known by the
disputed domain name, demonstrates that Respondent lacks rights and legitimate
interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July
7, 2006) (concluding that the respondent was not commonly known by the disputed
domain names where the WHOIS information, as well as all other information in
the record, gave no indication that the respondent was commonly known by the
disputed domain names, and the complainant had not authorized the respondent to
register a domain name containing its registered mark); see also
Respondent’s disputed domain name redirects Internet users to a generic website unaffiliated with Complainant that displays various third-party links to other flight-related goods and services in competition with Complainant. The Panel finds that maintaining such a directory site with third-party competing links is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. 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); see also Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name 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).”).
Complainant asserts that Respondent’s registration and use of a common typo in Complainant’s mark as the disputed domain name constitutes typosquatting. Complainant argues that Respondent is using this common mistake in order to redirect Internet users searching for Complainant. The Panel finds these efforts to capture Complainant’s customers and redirect them to the sites in competition with Complainant constitute typosquatting and evidence that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of the complainant’s DINERS CLUB mark, was evidence in and of itself that the respondent lacks rights or legitimate interests in the disputed domain name vis á vis the complainant); see also Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where the respondent used the typosquatted <wwwdewalt.com> domain name to divert Internet users to a search engine webpage, and failed to respond to the complaint).
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Respondent’s disputed domain name, which was registered on June 12, 2004 after Complainant had established rights in its mark, resolves to a website featuring third-party links to competing goods and services. Respondent’s use of the disputed domain name to redirect Internet users to this directory site clearly interferes with Complainant’s business. Internet users seeking Complainant’s business but typing a misspelled version of Complainant’s mark will unknowingly be diverted away from Complainant’s website to a variety of websites that offer competing goods and services. The Panel finds Respondent’s disruption of Complainant’s business and attempts to mislead the unsuspecting Internet user demonstrate bad faith registration and use under Policy ¶ 4(b)(iii). See Jerie v. Burian, FA 795430 (Nat. Arb. Forum Oct. 30, 2006) (concluding that the respondent registered and used the <sportlivescore.com> domain name in order to disrupt the complainant’s business under the LIVESCORE mark because the respondent was maintaining a website in direct competition with the complainant); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent misspells Complainant’s mark in the disputed
domain to capture Internet users who unknowingly make a typo when entering
Complainant’s mark in an effort to find Complainant’s online presence. Internet users entering the misspelled
version of Complainant’s mark find themselves redirected to a page completely
unaffiliated with Complainant but featuring links to similar goods and services. It is presumed that Respondent receives
compensation in the form of “click-through” fees when any of the Internet users
subsequently click on the links located at the disputed domain name’s
website. The Panel finds Respondent’s
efforts to mislead people seeking Complainant and attract Complainant’s
business for Respondent’s own personal gain establish bad faith registration
and use under Policy ¶ 4(b)(iv). See
The Panel has previously concluded that Respondent is engaged in the practice of typosquatting through the use of the confusingly similar disputed domain name. The Panel finds Respondent’s practice of typosquatting is evidence in and of itself of bad faith registration and use under Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent “created ‘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’. . . through Respondent’s persistent practice of ‘typosquatting’”); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. 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)). Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(a)(iii).
The Panel finds 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 <amreicanairlines.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: March 9, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum