DECISION

 

Delta Corporate Identity, Inc. and Delta Air Lines, Inc. v. Seventh Summit Ventures

Claim Number: FA0211000133621

 

PARTIES

Complainant is Delta Corporate Identity, Inc. and Delta Air Lines, Inc., Atlanta, GA, USA (“Complainant”) represented by Paul D. McGrady, of Ladas & Parry, Digital Brands Practice.  Respondent is Seventh Summit Ventures, St. Johns, West Indies 100, AG (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wwwdeltaair.com>, registered with Tucows, 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.

 

James A. Carmody, Esq., as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 12, 2002; the Forum received a hard copy of the Complaint on November 13, 2002.

 

On November 13, 2002, Tucows, Inc. confirmed by e-mail to the Forum that the domain name <wwwdeltaair.com> is registered with Tucows, Inc. and that Respondent is the current registrant of the name. Tucows, Inc. has verified that Respondent is bound by the Tucows, 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 15, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 5, 2002 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@wwwdeltaair.com by e-mail.

 

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

 

On December 23, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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.”  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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A.     Complainant makes the following assertions:

 

Respondent’s <wwwdeltaair.com> domain name is confusingly similar to Complainant’s registered DELTA mark.

 

Respondent does not have any rights or legitimate interests in the <wwwdeltaair.com> domain name.

 

Respondent registered and used the <wwwdeltaair.com> domain name in bad faith.

 

B.     Respondent failed to submit a Response in this proceeding.

 

 

FINDINGS

Complainants, Delta Corporate Identity, Inc. and Delta Air Lines, Inc., are holder and licensee, respectively, of the worldwide family of marks incorporating the DELTA mark. These include Complainants’ DELTA AIR LINES mark (e.g. U.S. Reg. No. 970,418, registered on October 9, 1973 and Canadian Reg. No. 394, 181, registered on August 12, 1977). For the purpose of this dispute, both Complainants will be referred to as “Complainant.”

 

Complainant, in many respects the largest U.S. airline and ranked as the 116^th largest company in the world according to Fortune magazine, serves 205 cities domestically and 44 additional cities worldwide. Complainant’s annual revenues approach nearly $15 billion dollars, with many millions of dollars spent on advertising and promotion of its DELTA family of marks. Through these expenditures and via its worldwide use of the DELTA mark, Complainant has established substantial goodwill and consumer recognition of its mark.

 

Complainant also maintains a presence on the Internet, including at the <delta.com> domain name. At this website, Complainant markets its services directly to its worldwide consumer base and provides information about those services.

 

Respondent, Seventh Summit Ventures, registered the <wwwdeltaair.com> domain name on January 18, 2000, and is not licensed or authorized by Complainant to use the DELTA AIR LINES mark for any purpose. Respondent has made no use of the disputed domain name.

 

DISCUSSION

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 the 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.

 

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 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.

 

Identical and/or Confusingly Similar

 

Complainant has established sufficient rights in the DELTA AIR LINES mark due to registration of the mark on governmental registers worldwide, as well as through widespread and continuous use of the mark.

 

Respondent’s <wwwdeltaair.com>  domain name is confusingly similar to Complainant’s DELTA AIR LINES mark. Respondent has done nothing to distinguish the fact that the dominant characteristic of the domain name is the DELTA AIR LINES mark, other than to add a “www” prefix and delete the word LINES. The “www” prefix results in the creation of a domain name that resembles the result of an Internet user partaking in the common mistake of omitting the period between the “www” and the second-level domain. This is not a relevant distinction for purposes of a Policy ¶ 4(a)(i) analysis. See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”).

 

The deletion of the word LINES from Complainant’s mark doesn’t prevent a finding of confusing similarity either, as the dominant feature of the domain name remains the relevant portion of Complainant’s DELTA AIR LINES mark. See WestJet Air Center, Inc. v. West Jets LLC, FA 96882 (Nat. Arb. Forum Apr. 20, 2001) (finding that the <westjets.com> domain name is confusingly similar to Complainant’s mark, where Complainant holds the WEST JET AIR CENTER mark); see also Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name <asprey.com> is confusingly similar to the Complainant’s “Asprey & Garrard” and “Miss Asprey” marks).

 

Respondent’s addition of the top-level domain “.com”, a feature that is required of all domain name registrants, also fails to prevent the Panel from finding Respondent’s domain name to be confusingly similar to Complainant’s mark. See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that "the addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants").

 

Accordingly, Policy ¶ 4(a)(i) is satisfied. 

 

Rights or Legitimate Interests

 

Respondent failed to submit a Response to the Complaint in this dispute, giving rise to the inference that it has no rights or legitimate interests in the disputed domain name. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where Respondent fails to respond); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).

 

If Complainant presents a prima facie case against Respondent, the burden shifts to Respondent to demonstrate rights and legitimate interests. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests in respect of the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name). Complainant’s burden will be met by submitting evidence sufficient to show that Respondent does not qualify for the protections listed in Policy ¶ 4(c)(i)-(iii).

 

By failing to use its domain name or post content at its website, Respondent has not made a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name as defined in Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where Respondent failed to submit a Response to the Complaint and had made no use of the domain name in question); see also Ritz-Carlton Hotel v. Club Car Executive, D2000-0611 (WIPO Sept. 18, 2000) (finding that prior to any notice of the dispute, Respondent had not used the domain names in connection with any type of bona fide offering of goods and services); see also BMW AG v. Loophole, D2000-1156 (WIPO Oct. 26, 2000) (finding no rights in the domain name where Respondent claimed to be using the domain name for a non-commercial purpose but had made no actual use of the domain name).

 

Respondent’s contact information states that it is “Seventh Summit Ventures” and no evidence supports the proposition that it has ever been “commonly known by” the name WWWDELTAAIR or <wwwdeltaair.com>. Furthermore, given the prominence and widespread use of the DELTA mark, it is highly unlikely that Respondent could ever claim to be known by the disputed domain name. As such, the Panel finds that Complainant has met its burden in showing that Respondent does not fall under the ambit of Policy ¶ 4(c)(ii). See Nike, Inc. v. B. B. de Boer, D2000-1397 (WIPO Dec. 21, 2000) (finding no rights or legitimate interests where one “would be hard pressed to find a person who may show a right or legitimate interest” in a domain name containing Complainant's distinct and famous NIKE trademark); see also Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”); 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").

 

Complainant has shown that Respondent does not meet any of the criteria outlined in Policy ¶ 4(c)(i)-(iii), which would have demonstrated adequate rights and legitimate interests in the domain name. Without any evidence rebutting Complainant’s substantiated assertions to rely upon, the Panel is compelled to find for Complainant.

 

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <wwwdeltaair.com> domain name under Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

While Policy paragraph 4(b) lists four circumstances evidencing bad faith use and registration of a domain name, that list is not meant to be all-inclusive. See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy paragraph 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also Home Interiors & Gifts, Inc. v. Home Interiors, D2000-0010 (WIPO Mar. 7, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in ¶4(b), does not mean that the domain names at issue were not registered in and are not being used in bad faith”).

 

One example of bad faith use and registration not directly illustrated in the Policy, yet nevertheless representing bad faith use and registration of a domain name under Policy ¶ 4(a)(iii) is typosquatting. See AltaVista Co. v. Stoneybrook, D2000-0886 (WIPO Oct. 26, 2000) (awarding <wwwalavista.com>, among other misspellings of altavista.com, to Complainant); see also Dow Jones & Co. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (awarding domain names <wwwdowjones.com>, <wwwwsj.com>, <wwwbarrons.com> and <wwwbarronsmag.com> to Complainants). Respondent’s registration and use of the <wwwdeltaair.com> domain name qualifies as typosquatting (simply adding a “www” prefix to a mark in which another has rights exemplifies typosquatting) and therefore evidences bad faith use and registration.

 

Further evidence of Respondent’s bad faith registration of the disputed domain name can be inferred from the fact that Respondent had actual knowledge of Complainant’s mark when it registered the infringing domain name. Such registration is another non-enumerated example of bad faith under Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18. 2000) (finding that Respondent had actual and constructive knowledge of Complainant’s EXXON mark given the worldwide prominence of the mark and thus Respondent registered the domain name in bad faith).

 

Respondent has not posted any original content on its website since its registration nearly three years ago. This extended period of inactivity, without any showings by Respondent to the contrary and in light of the fame of Complainant’s mark, evidences bad faith use of a domain name under Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that Respondent’s passive holding of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Mondich & Am. Vintage Wine Biscuits, Inc. v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that Respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith); see also Body Shop Int’l PLC v. CPIC NET & Hussain, D2000-1214 (Nov. 26, 2000) (finding bad faith where (1) Respondent failed to use the domain name and (2) it is clear that Respondent registered the domain name as an opportunistic attempt to gain from the goodwill of the Complainant).

 

Finally, Respondent’s actions fall afoul of Policy ¶ 4(b)(ii), which states that registration of a domain name “to prevent the owner of the trademark…from reflecting the mark in a corresponding domain name…provided you have engaged in a pattern of such conduct,” evidences bad faith use and registration. A previous panel found against Respondent in a dispute with Complainant over <deltaair.com>. See Delta Corporate Identity, Inc. v. Seventh Summit Ventures, FA 106112 (Nat. Arb. Forum May 6, 2002) (transferring <deltaair.com> to Complainant). The <wwwdeltaair.com> domain name is strikingly similar to Respondent’s previously registered <deltaair.com> domain name, and the Panel concludes that Respondent’s multiple registrations of domain names incorporating Complainant’s DELTA AIR LINES mark, including the domian name in the present dispute, evidence bad faith use and registration. See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also YAHOO! Inc. v. Syrynx, Inc., D2000-1675 (WIPO Jan. 30, 2001) (finding a bad faith pattern pursuant to Policy ¶ 4(b)(ii) in Respondent's registration of two domain names incorporating Complainant's YAHOO! mark).

 

DECISION

Having established all three elements under ICANN Policy, the Panel concludes that relief shall be hereby GRANTED.

 

Accordingly, it is Ordered that the <wwwdeltaair.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

James A. Carmody, Esq., Panelist

Dated: December 31, 2002

 

 

 

 

 

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