Alaska Air Group, Inc., and its subsidiary, Alaska Airlines v. Privacy Ltd. Disclosed Agent for YOLAPT
Claim Number: FA1210001468315
Complainant is Alaska Air Group, Inc., and its subsidiary, Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Privacy Ltd. Disclosed Agent for YOLAPT (“Respondent”), Isle of Man.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alaskaiar.com>, <alasksair.com>, <aslaskaair.com>, and <aslaskaairlines.com>, registered with Fabulous.Com Pty Ltd.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 22, 2012; the National Arbitration Forum received payment on October 22, 2012.
On October 22, 2012, Fabulous.Com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <alaskaiar.com>, <alasksair.com>, <aslaskaair.com>, and <aslaskaairlines.com> are registered with Fabulous.Com Pty Ltd. and that Respondent is the current registrant of the names. Fabulous.Com Pty Ltd. has verified that Respondent is bound by the Fabulous.Com Pty Ltd. 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 December 26, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 15, 2013 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@alaskaiar.com, postmaster@alasksair.com, postmaster@aslaskaair.com, postmaster@aslaskaairlines.com. Also on December 26, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 January 22, 2013 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
Preliminary Issue: Multiple Complainants
The relevant rules governing multiple complainants are UDRP Rule 3(a) and the National Arbitration Forum’s Supplemental Rule 1(e). UDRP Rule 3(a) states, “Any person or entity may initiate an administrative proceeding by submitting a complaint.” The National Arbitration Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
There are two Complainants in this matter: Alaska Air Group, Inc., and Alaska Airlines. Complainant argues that Alaska Airlines is a subsidiary of Alaska Air Group, Inc., and both entities own the ALASKA AIRLINES mark through federal trademark registration, and both extensively and continuously use the mark in connection with air transportation services and travel.
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example See Vancouver Organizing Comm. for the 2010 Olympic and Paralymic Games and Int’l Olympic Comm. v. Malik, FA 666119 (Nat. Arb. Forum May 12, 2006)(It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.). see also Tasty Baking, Co. & Tastykake Investments, Inc. v. Quality Hosting, FA 208854 (Nat. Arb. Forum Dec. 28, 2003) (the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names.).
The Panel finds that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants, and treats them as a single entity in this proceeding. The Complainants will hereafter be collectively referred to as “Complainant” throughout this decision.
A. Complainant
Complainant is the owner of the trademark registration for the ALASKA AIRLINES mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,561,416 registered October 17, 1989). See Exhibit E. Complainant operates a major carrier airline and operates hubs in the Seattle, Anchorage, and Portland airports. Complainant’s routes include more than ninety cities throughout North America, and Complainant has spent millions of dollars to advertise and promote the ALASAK AIRLINES mark on its website, found at the <alaskaairlines.com> domain name.
The <alaskaiar.com>, <alasksair.com>, <aslaskaair.com>, and <aslaskaairlines.com> domain names are confusingly similar to Complainant’s ALASKA AIRLINES mark, and the domain names are used to redirect Internet users to a website that features generic links to websites belonging to third parties that compete with Complainant’s business. Respondent registered each of the disputed domain names on November 26, 2001. Respondent is not commonly known by any of the <alaskaiar.com>, <alasksair.com>, <aslaskaair.com>, and <aslaskaairlines.com> domain names and does not use the domains for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent typosquatted the disputed domain names from Complainant’s mark. Respondent registered and uses the <alaskaiar.com>, <alasksair.com>, <aslaskaair.com>, and <aslaskaairlines.com> domain names in bad faith, shown by Respondent’s use of a “click-through” website to generate revenue, and to confuse consumers visiting the website. Respondent’s disruptive use of the domain name is also a demonstration of its bad faith registration and use. Respondent currently holds registrations for various other domain names that appear to be typosquatted from other entities’ registered trademarks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Alaska Air Group Inc., and its subsidiary, Alaska Airlines who list their address as Seattle, WA, USA. Complainant owns and operates airline locations throughout the USA and Mexico. Complainant also owns the USA registered family of ALASKA AIR marks and conducts business on the internet at its official website located at <alaskaairlines.com>.
Respondent is Privacy Ltd. Disclosed Agent For Yolapt who list its address as the Isle of Man. Respondent registered the disputed domain names on November 26, 2001. Respondent’s registrar list its address as Australia.
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."
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.
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.”).
Complainant claims that it owns the rights in its ALASKA AIRLINES mark as a result of its USPTO trademark registration (e.g., Reg. No. 1,561,416 registered October 17, 1989). In AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006), the panel held that the complainant’s submitted evidence of its USPTO trademark registration established the complainant’s rights in the mark under the Policy. The Panel similarly determines that Complainant’s USPTO trademark registrations demonstrate Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i). The Panel finds that Complainant is not required to register its mark in the country of Respondent’s residence and operation, for the purposes of Policy ¶ 4(a)(i). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Complainant alleges that each of the <alaskaiar.com>, <alasksair.com>, <aslaskaair.com>, and <aslaskaairlines.com> domain names is confusingly similar to Complainant’s ALASKA AIRLINES mark, as a result of each domain name having a character removed and replaced with another or juxtaposed within the mark. The Panel notes that the <alaskaiar.com>, <alasksair.com>, and <aslaskaair.com> domain names omit the word “lines” from the word “airlines” in the mark, and all the disputed domain names remove the space between the mark’s words and include the generic top-level domain (“gTLD”) “.com.” The Panel finds that omitting a portion of a word from the mark, misspelling the mark, removing the space in the mark, and adding a gTLD are all contributing factors to the domain names’ confusing similarity to Complainant’s ALASKA AIRLINES mark under Policy ¶ 4(a)(i). See WestJet Air Ctr., Inc. v. W. Jets LLC, FA 96882 (Nat. Arb. Forum Apr. 20, 2001) (finding that the <westjets.com> domain name is confusingly similar to the complainant’s mark, where the complainant holds the WEST JET AIR CENTER mark); see also Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that 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 Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant makes the argument that Respondent is not commonly known by any of the <alaskaiar.com>, <alasksair.com>, <aslaskaair.com>, and <aslaskaairlines.com> domain names, and Respondent is not legitimately affiliated with Complainant. Complainant alleges that the WHOIS information, disclosed in its Exhibit I, suggests that Respondent is known by a different name than any of the domain names. The Panel notes that the WHOIS information reveals that Respondent is identified as “Privacy Ltd. Disclosed Agent for YOLAPT,” and finds that the WHOIS information does not show that Respondent is commonly known by any of the disputed domain names under 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).
Complainant further alleges that Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain names, due to Respondent’s use of the resolving websites to post hyperlinks that lead to other websites offering competing services to those of Complainant. The Panel finds that by leading consumers to websites that displays hyperlinks belonging to businesses that compete with Complainant, Respondent does not make 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 H-D Mich. Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Complainant also contends that Respondent’s domain name registrations constitute typosquatting of Complainant’s ALASKA AIRLINES mark, due to the intentional misspellings of the domain name that closely resemble Complainant’s mark. The Panel finds that the <alaskaiar.com>, <alasksair.com>, <aslaskaair.com>, and <aslaskaairlines.com> domain names are typosquatted versions of Complainant’s mark and/or intentionally misspelled versions of Complainant’s ALASKA AIRLINES mark and as such indicate an absence of rights or legitimate interests 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).”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant argues that Respondent holds registrations for other domain names which appear to by typosquatted from third parties’ marks. Complainant provides evidence in its Exhibit O which it claims are examples of Respondent’s other typosquatted domain names, and also provides its Exhibit N, showing previous UDRP decisions finding against Respondent. The Panel finds that the evidence of adverse decisions against Respondent demonstrates Respondent’s history of bad faith registration and use under Policy ¶ 4(b)(ii) of domain names incorporating marks belonging to other entities. See Enter. Holdings, Inc. v. Privacy Ltd. Disclosed Agent for YOLAPT, FA 1331738 (Nat. Arb. Forum Aug. 10, 2010); see also TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”).
Complainant argues that Respondent registered and uses the <alaskaiar.com>, <alasksair.com>, <aslaskaair.com>, and <aslaskaairlines.com> domain names in bad faith by using the resolving websites to feature hyperlinks sponsored by Complainant’s competitors, thereby disrupting Complainant’s business. The panel in H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008), stated that because the disputed domain name resolved to websites that listed hyperlinks to the complainant’s competitors, the respondent intended to disrupt the complainant’s business, indicating bad faith under the Policy. The Panel finds that Respondent’s bad faith registration and use under Policy ¶ 4(b)(iii) is shown by its disruptive use of the disputed domain names through Respondent’s hosting of websites that include hyperlinks to Complainant’s competition.
Complainant also argues that Respondent registered and uses the <alaskaiar.com>, <alasksair.com>, <aslaskaair.com>, and <aslaskaairlines.com> domain names in bad faith by confusing Internet users in order to make a commercial gain from the hyperlinks displayed at the resolving websites. Complainant sets forth the contention that Respondent utilizes pay-per-click links as a method of generating revenue for each misguided Internet user who comes across Respondent’s website under the impression that it is reaching Complainant’s website. The Panel finds that by making a profit by confusing and attracting Internet consumers and offering hyperlinks that compete with Complainant’s business, Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (the panel concluded that the respondent used the disputed domain name to operate a website featuring links to competing commercial websites and presumably earned fees as a result, which is evidence of bad faith registration and use.).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <alaskaiar.com>, <alasksair.com>, <aslaskaair.com>, and <aslaskaairlines.com>, domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: February 5, 2013
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page