Alaska Airlines v. Dr.HONG
Claim Number: FA1110001410648
Complainant is Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Dr.HONG (“Respondent”), Korea.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alaskaairline.com>, registered with Korea Information Certificate Authority, Inc. d/b/a DomainCA.com.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 7, 2011; the National Arbitration Forum received payment on October 7, 2011. The Complaint was submitted in both Korean and English.
On October 10, 2011, Korea Information Certificate Authority, Inc. d/b/a DomainCA.com confirmed by e-mail to the National Arbitration Forum that the <alaskaairline.com> domain name is registered with Korea Information Certificate Authority, Inc. d/b/a DomainCA.com and that Respondent is the current registrant of the name. Korea Information Certificate Authority, Inc. d/b/a DomainCA.com has verified that Respondent is bound by the Korea Information Certificate Authority, Inc. d/b/a DomainCA.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 18, 2011, the Forum served the Korean language Complaint and all Annexes, including a Korean language Written Notice of the Complaint, setting a deadline of November 7, 2011 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@alaskaairline.com. Also on October 18, 2011, the Korean Language Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 11, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <alaskaairline.com> domain name is confusingly similar to Complainant’s ALASKA AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <alaskaairline.com> domain name.
3. Respondent registered and used the <alaskaairline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Alaska Airlines, is an airline that operates hubs at Seattle-Tacoma International Airport, Ted Stevens Anchorage International Airport, and Portland International Airport. Complainant owns a trademark registration for the ALASKA AIRLINES mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,561,416 registered October 17, 1989).
Respondent, Dr.HONG, registered the <alaskaairline.com> domain name on February 25, 1999. The disputed domain name resolves to a generic website listing a variety of pay-per-click links to third-party websites, some of which compete 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.
According to the trademark registration provided by Complainant, Complainant has registered its ALASKA AIRLINES mark with the USPTO (Reg. No. 1,561,416 registered October 17, 1989). Past panels have determined that a USPTO trademark registration is sufficient evidence of a complainant’s rights in a mark, even when the respondent may live in a country other than where the mark is registered. See Disney Enters., Inc. v. Kudrna, FA 686103 (Nat. Arb. Forum June 2, 2006) (finding that the complainant’s registration of the DISNEY trademark with the USPTO prior to the respondent’s registration of the disputed domain name is sufficient to prove that the complainant has rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). The Panel thus concludes that Complainant has therefore proven it owns rights in the ALASKA AIRLINES mark for the purposes of Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <alaskaairline.com> domain name is confusingly similar to Complainant’s ALASKA AIRLINES mark because the disputed domain name is comprised of the mark without the space between the terms and the final letter “s” and with the addition of the generic top-level domain (“gTLD”) “.com.” In Compaq Info. Techs. Group, L.P. v. Seocho, FA 103879 (Nat. Arb. Forum Feb. 25, 2002), a prior panel found that removing a single letter from a complainant’s mark did not significantly change the overall impression of the mark. The panel in U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007), also established that neither the removal of a space nor the addition of a gTLD distinguish the disputed domain name from the mark. Based on this precedent, the Panel concludes that Respondent’s <alaskaairline.com> domain name is confusingly similar to Complainant’s ALASKA AIRLINES mark pursuant to Policy ¶ 4(a)(i).
The Panel determines Complainant has proven Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant establishes a prima facie case in support of its allegations, Policy ¶ 4(a)(ii) requires the burden to shift to Respondent to prove it has rights or legitimate interests in the disputed domain name. The Panel concludes that Complainant has established a prima facie case based on the arguments contained in the Complaint, and Respondent has failed to submit a Response to these proceedings. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to respondent to show it does have rights or legitimate interests”); see also Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”). Nevertheless, the Panel will examine the record according to the Policy ¶ 4(c) factors to determine whether Respondent has rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent is not commonly known by the <alaskaairline.com> domain name. Complainant contends that Respondent is not sponsored or affiliated with Complainant and that Complainant has not given Respondent permission to use the ALASKA AIRLINES mark in a domain name. The WHOIS information for the <alaskaairline.com> domain name lists the registrant as “Dr.HONG,” which has no apparent connection to the disputed domain name. In M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006), and St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007), previous panels determined that a complainant was not commonly known by the disputed domain names based on the WHOIS information and other information in the record. Accordingly, the Panel concludes that Respondent is not commonly known by the <alaskaairline.com> domain name and therefore has no rights and legitimate interests under Policy ¶ 4(c)(ii).
Complainant asserts that Respondent’s resolving website at the <alaskaairline.com> domain name provides only generic links to third-party websites, some of which compete with Complainant’s business. The screenshot provided by Complainant reveals that many of these links have titles related to Complainant, such as “Alaska Airline,” “Alaska Airline Deals,” “Alaska Airline Info,” etc. Extensive case precedent has established that maintaining a list of pay-per-click links at a confusingly similar disputed domain name does not constitute a bona fide offering of goods or services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use 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 Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names).
Complainant argues that Respondent’s registration of the <alaskaairline.com> domain name is an example of typosquatting because the disputed domain name is only a misspelling of Complainant’s mark that leaves off the final letter “s.” The Panel finds that by typosquatting, Respondent clearly intends to take advantage of the fame of Complainant’s mark. As a result, the Panel concludes that Respondent’s typosquatting reveals that Respondent does not possess rights and legitimate interests in the <alaskaairline.com> domain name under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).
The Panel determines Complainant has proven Policy ¶ 4(a)(ii).
Complainant provides evidence that the links featured at the <alaskaairline.com> domain name relate to various third-party websites, including some that also offer airline services. The Panel finds that these links foster competition with Complainant under Complainant’s mark, which disrupts Complainant’s business by potentially diverting customers. The Panel therefore holds that Respondent’s activities in connection with the disputed domain name indicate bad faith registration and use according to Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).
Complainant contends that the only content on the website resolving from Respondent’s <alaskairline.com> domain name is a listing of pay-per-click links to various third-party websites. The screenshot submitted by Complainant corroborates this assertion. The Panel determines that, because of the potential to profit from the pay-per-click links featured on the website, Respondent intentionally registered the disputed domain name containing Complainant’s mark in order to attract Complainant’s intending consumers and create a likelihood of confusion regarding the source, affiliation or sponsorship of Respondent’s resolving website. The Panel finds that Respondent’s actions reveal bad faith registration and use under Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”); see also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Complainant also contends that Respondent is a member of Complainant’s affiliate program and is violating the affiliate agreement by using the confusingly similar disputed domain name to redirect Internet users to Complainant’s own website through Respondent’s website. Complainant argues that this misuse of the affiliate program shows Respondent’s bad faith registration and use according to Policy ¶ 4(a)(iii) and the Panel agrees. See Cricket Commc’ns, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007) (finding bad faith registration and use where the respondent registered domain names containing the complainant’s mark after enrolling in the complainant’s affiliate program); see also Sports Auth. Mich., Inc. v. Internet Hosting, FA 124516 (Nat. Arb. Forum Nov. 4, 2002) (“Redirecting Internet users attempting to reach a complainant’s website in order to gain a profit off of a complainant is one example of bad faith use and registration under the Policy.”).
The Panel has determined that Respondent’s registration of the <alaskaairline.com> domain name represents typosquatting. Complainant argues that Respondent’s typosquatting indicates bad faith registration and use according to Policy ¶ 4(a)(iii). The Panel agrees with Complainant. 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 Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.).
The Panel determines Complainant has proven Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alaskaairline.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: November 15, 2011
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