American Airlines v. Luis Vega Selva
Claim Number: FA1001001302689
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 <advantagemiles.com>, registered with Godaddy.com, 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.
The Honorable Charles K. McCotter, Jr. (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 13, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <advantagemiles.com> domain name is registered with Godaddy.com, Inc. and that Respondent is the current registrant of the name. 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 January 15, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 4, 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@advantagemiles.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 10, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 <advantagemiles.com> domain name is confusingly similar to Complainant’s AADVANTAGE mark.
2. Respondent does not have any rights or legitimate interests in the <advantagemiles.com> domain name.
3. Respondent registered and used the <advantagemiles.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American
Airlines, holds a trademark registration with the United States Patent and
Trademark Office (“USPTO”) for the AADVANTAGE mark (Reg. No. 2,006,172 issued
October 8, 1996) in connection with the promotion of travel services, including
a frequent flyer miles program.
Respondent, Luis Vega Selva, registered the disputed domain name <advantagemiles.com> on June 30, 2008. The disputed domain name resolves to a website displaying links to third-party websites, some of which are in competition with Complainant’s business.
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 asserts rights in its AADVANTAGE mark through its holding of a trademark registration for the AADVANTAGE mark with the USPTO (Reg. No. 2,006,172 issued October 8, 1996). The Panel finds that Complainant has established rights in the AADVANTAGE mark under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Complainant argues that Respondent’s <advantagemiles.com> domain name is confusingly
similar to Complainant’s AADVANTAGE mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name is
confusingly similar to Complainant’s AADVANTAGE mark because Respondent’s
domain name deletes an “a” from Complainant’s mark, adds the descriptive term
“miles,” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the deletion of the
letter “a” from Complainant’s mark renders Respondent’s disputed domain name
phonetically identical and thus confusingly similar to Complainant’s mark. See Hewlett-Packard Co. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
The WHOIS information lists the registrant as “Luis Vega Selva.” Complainant asserts that Respondent is not licensed to register the disputed domain name. Without evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. 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 of that it is commonly known by the disputed domain name); see also 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).
Respondent’s disputed domain name was registered on June 30, 2008. The disputed domain name resolves to a website displaying links to third-party websites, some of which are in competition with Complainant’s business. The Panel presumes that Respondent receives pay-per-click fees from these linked websites. Therefore, the Panel finds that Respondent’s use of the disputed domain name is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See 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)); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s registration and use of the disputed domain name to link Internet users to websites featuring third-party links which are in competition with Complainant constitutes a disruption of Complainant’s business and is evidence of bad faith registration and use pursuant to 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 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)).
The Panel finds that Respondent’s use of the disputed domain
name to intentionally attract Internet users to the disputed domain name and
profit through the receipt of pay-per-click fees by creating a strong
likelihood of confusion with Complainant’s AADVANTAGE mark is evidence of bad
faith pursuant to Policy ¶ 4(b)(iv). See
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 <advantagemiles.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 24, 2010
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