Alaska Air Group, Inc., and its subsidiary, Alaska Airlines v. Virtual Services Corporation
Claim Number: FA1307001510955
Complainant is Alaska Air Group, Inc., and its subsidiary, Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Virtual Services Corporation (“Respondent”), Switzerland.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue is <alaskaairliness.com>, <alaskaaorlines.com>, and <alaskasairlines.com>, registered with Fabulous 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 22, 2013; the National Arbitration Forum received payment on July 23, 2013.
On July 23, 2013, Fabulous Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <alaskaairliness.com>, <alaskaaorlines.com>, and <alaskasairlines.com> domain names are registered with Fabulous Pty Ltd and that Respondent is the current registrant of the names. Fabulous Pty Ltd has verified that Respondent is bound by the Fabulous 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 July 24, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 13, 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@alaskaairliness.com, postmaster@alaskaaorlines.com, postmaster@alaskasairlines.com. Also on July 24, 2013, 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.
A timely Response was received and determined to be complete on .
On August 22, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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.
A. Complainant
Complainant contends as follows:
Alaska Airlines and Horizon Air are both subsidiaries of Complainant, Alaska Air Group.
Complainant owns rights in the ALASKA AIRLINES mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent registered the disputed domain names on October 1, 2005.
Complainant sent a cease and desist letter to Respondent which was unanswered.
Respondent’s <alaskaairliness.com>, <alaskaaorlines.com>, and <alaskasairlines.com> domain names are confusingly similar to Complainant’s ALASKA AIRLINES mark. Respondent’s disputed domain names are typosquatted versions of Complainant’s registered mark.
Respondent has no rights or legitimate interests in the <alaskaairliness.com>, <alaskaaorlines.com>, and <alaskasairlines.com> domain names. Respondent is not commonly known by the disputed domain names. Respondent is not sponsored by or legitimately affiliated with Complainant in any way.
Complainant has not given Respondent permission to use its ALASKA AIRLINES mark in any way.
Respondent’s disputed domain names resolve to websites featuring Complainant’s ALASKA AIRLINES mark spelled correctly. Respondent uses the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent presumably receives pay-per-click fees from the links featured on its resolving websites. Respondent is not using the disputed domain names to provide a bona fide offering of goods or services, nor a legitimate noncommercial or fair use.
Respondent registered and is using the disputed domain names in bad faith. Respondent is a recalcitrant, serial cybersquatter and Complainant based on past UDRP decisions that held against Respondent. Respondent’s use of the disputed domain names indicates typosquatting. Respondent is using Complainant’s mark to resolve to websites featuring links to services and products offered by Complainant. Respondent uses the disputed domain names to attract and mislead Internet users to its websites for profit. Respondent’s use of the disputed domain names diverts potential customers away from Complainant’s business to third party websites, thereby disrupting Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Preliminary Issue: Multiple Complainants
In the instant proceedings, there are two named Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny 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.”
Rule 1(e) allows multiple complainants to proceed as one complainant where the complainants demonstrate there is a nexus between them such as a license or partnership. See Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Nat. Arb. Forum Dec. 28, 2003) (two complainants treated as a single entity where both parties held rights in trademarks contained within the disputed domain names); see also Am. Family Health Servs. Group, LLC v. Logan, FA 220049 (Nat. Arb. Forum Feb. 6, 2004) (Finding a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark).
Here, Alaska Airlines is a subsidiary of Alaska Air Group, Inc. Alaska Air Group, Inc. and Alaska Airlines own the ALASKA AIRLINES mark. This relationship between Complainants creates a sufficient nexus for Complainants to be treated as a single entity for the purpose of the UDRP and therefore references throughout this decision to “Complainant” are thus references to both named complainants. See Microsoft Corporation and Skype v. Nabil Lolz (Nat. Arb. Forum Jun. 19, 2013) (finding a parent/subsidiary relationship between co-complainants is sufficient to allow co-complainants to proceed as a single complainant.)
Complainant owns USPTO registered trademarks for ALASKA AIRLINES.
Respondent is not affiliated with Complainant and had not been authorized to use the ALASKA AIRLINES mark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired trademark rights in ALASKA AIRLINES.
Respondent’s at-issue domain names are each used to address websites that present Complainant’s trademark and display pay-per-click links to Complainant’s competitors and others.
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.”).
The at-issue domain names are each confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the ALASKA AIRLINES mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). Complainant need not register its mark where Respondent operates or resides to demonstrate such rights. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of 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 and it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s domain names differ by a single character or juxtaposition of two characters. The <alaskaairliness.com> domain name appends an additional “s” to Complainant’s registered mark; the <alaskaaorlines.com> domain name replaces the “I” in “air” with an “o” while the <alaskasairlines.com> domain name contains an extra trailing “s.” Each of Respondent’s at-issue domain names contains the necessary generic top-level domain “com.” These trivial variations between each of the domain names and Complainant’s trademark are insufficient to differentiate any one of the at-issue domain name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <alaskaairliness.com>, <alaskaaorlines.com>, and <alaskasairlines.com> domain names are confusingly similar to Complainant’s ALASKA AIRLINES trademark. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”); see also T.R. World Gym-IP, LLC v. D’Addio, FA 956501 (Nat. Arb. Forum May 22, 2007) (finding that the addition of the letter “s” to a registered trademark in a contested domain name is not enough to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding that <oicq.net> and <oicq.com> are confusingly similar to the complainant’s mark, ICQ).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain names. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of any of the at-issue domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and since as discussed below there is no evidence supporting a finding of rights or interests pursuant to Policy 4(c) regarding any at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information identifies “Virtual Services Corporation” as the at-issue domain names’ registrant. Moreover, the record before the Panel contains no evidence suggesting that Respondent is otherwise commonly known by any one of the domain names. The Panel thus concludes that Respondent is not commonly known by any at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent is using the disputed domain names to redirect mistyping Internet users to its websites. The websites feature generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent likely receives pay-per-click fees from the links featured on these websites. The <alaskaairliness.com> website features links such as, “Alaska Airlines,” “CheapOair Official Site,” “Airlines Ticket,” and “Alaska Airlines Flights.” The <alaskaaorlines.com> website featuring links such as, “70% off Cheap Airfare,” “Cheap airfares from only $44,” and “Find Super Cheap Flights” and the <alaskasairlines.com> domain name addresses a website featuring links such as, “Alaska Airlines,” “Virgin America Flights,” and “Cheapest Airline Tickets.” Using a domain name that is confusingly similar to a complainant’s registered mark to address a website featuring links that compete with a complainant’s business, as each of the at-issue domain names do, is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a legitimate noncommercial or fair use of the domain name under Policy ¶4(c)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors does not represent 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)).
The at-issue domain names were each registered and used in bad faith. As discussed below Policy ¶4(b) bad faith circumstances are present and there is additional non-Policy ¶4(b) evidence from which the Panel may independently conclude that pursuant to Policy ¶4(a)(iii) Respondent acted in bad faith with regard to each of the domain names.
First, Respondent is a serial cybersquatter. Multiple past UDRP panels have found against Respondent. The array of adverse decisions show that Respondent has engaged in an ongoing pattern of abusive domain name registration as characterized in Policy ¶4 (b)(ii). See Office Depot, Inc. v. Virtual Services Corp., FA 1488267 (Nat. Arb. Forum April 10, 2013); see also Supermarches Match v. Virtual Services Corp., Case No. D2007-1075 (WIPO Arbitration and Mediation Center); see also Mercury Payment Systems, Inc. v. Virtual Services Corp. Domains by Proxy- VSC Proxy Account & Nandy Sengupta, FA 1366297 (Nat. Arb. Forum March 23, 2011). The pattern suggests bad faith. See 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).”)
Second, Respondent is using the confusingly similar domain names to address websites that promote products that compete with Complainant. In so doing Respondent diverts potential customers away from Complainant, thereby disrupting Complainant’s business. Using the domain names in this manner demonstrates bad faith registration and use under Policy ¶ 4(b)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”)
Next, the confusingly similar domain names capitalize on those Internet users looking for Complainant who mistype the ALASKA AIRLINES mark, as well as those who click on a search engine result mistakenly believing that the hit’s URL relates to Complainant. These users accidently land on one of Respondent’s domain name related websites. After arriving, Respondent prays that at least some of these waylaid visitors will avail themselves of one of the pay-per-click links and thereby benefit Respondent. As mentioned elsewhere herein, some of the links are to Complainant’s competitors. These circumstances demonstrate bad faith pursuant to Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Finally, Respondent is a typosquatter. As discussed above each at-issue domain name is a mistyped version of ALASKA AIRLINES. Internet users looking for Complainant are instead delivered to one of Respondent’s websites when they mistype Complainant’s ALASKA AIRLINES trademark. Respondent’s typosquatting is additional evidence of bad faith use and registration under Policy ¶ 4(a)(iii). See Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting… is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on the [those] who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”); 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)). T
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alaskaairliness.com>, <alaskaaorlines.com>, and <alaskasairlines.com>domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 22, 2013
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