Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Nijat Hassanov
Claim Number: FA1407001570360
Complainant is Alaska Air Group, Inc. and its subsidiary, Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Nijat Hassanov (“Respondent”), Azerbaijan.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alakaair.com> and <alsakaair.com>, registered with Moniker Online Services LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on July 17, 2014; the National Arbitration Forum received payment on July 17, 2014.
On July 18, 2014, Moniker Online Services LLC confirmed by e-mail to the National Arbitration Forum that the <alakaair.com> and <alsakaair.com> domain names are registered with Moniker Online Services LLC and that Respondent is the current registrant of the names. Moniker Online Services LLC has verified that Respondent is bound by the Moniker Online Services LLC 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 21, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 11, 2014 by which Respondent could file a Response to the Complaint, via e-mail message addres-sed to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@alakaair.com and postmaster@alsakaair.com. Also on July 21, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the dead-line for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, adminis-trative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 18, 2014, pursuant to Complainant's request to have the dispute de-cided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a commercial airline, based in the United States, which provides air transportation services to and from the state of Alaska.
Complainant holds a registration, which is on file with the United States Patent and Trademark Office (“USPTO”) for its ALASKA AIRLINES service mark (Reg-istry No. 1,561,416, registered Oct. 17, 1989).
Respondent registered the <alakaair.com> and <alsakaair.com> domain names on June 4, 2002.
Each of these domain names is confusingly similar to Complainant’s ALASKA AIRLINES service mark.
Respondent has not been commonly known by either of the domain names.
Respondent is not sponsored by or affiliated with Complainant in any way.
Complainant has not given Respondent permission to use its ALASKA AIRLINES service mark in a domain name.
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 receives pay-per-click fees from the operation of the links displayed on the resolving websites.
Respondent has no rights to or legitimate interests in the <alakaair.com> and <alsakaair.com> domain names.
Respondent is a serial cyber-squatter, as evidenced by prior UDRP decisions in which it has been found to have registered and used in bad faith domain names derived from the marks of others.
Respondent’s use of the domain names disrupts Complainant’s business.
Each of the domain names is an instance of typo-squatting.
Respondent registered and uses the <alakaair.com> and <alsakaair.com> domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Preliminary Issue: Multiple Complainants
In the instant proceeding, two entities, Alaska Air Group, Inc. and Alaska Airlines, are together identified as Complainant. 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.”
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 one another. In Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Nat. Arb. Forum May 12, 2006), a panel recited that:
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 part-nership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
And, in Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Nat. Arb. Forum Dec. 28, 2003), a panel treated two entities as a single com-plainant where both held rights in trademarks contained within the disputed domain names.
The Complaint asserts that Alaska Airlines is a subsidiary of Alaska Air Group, Inc., and that together they own the ALASKA AIRLINES service mark. Thus the Complaint establishes by uncontested allegations a sufficient nexus between the two complaining entities to permit them to proceed together as a single Com-plainant. Accordingly, Alaska Air Group, Inc. and Alaska Airlines will be referred to throughout this Decision collectively as “Complainant.”
FINDINGS
(1) the domain names registered by Respondent are confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of either of the domain names; and
(3) the same domain names were registered and are being used by Respondent in bad faith.
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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 has rights in the ALASKA AIRLINES service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (concluding that a UDRP complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
This is true without regard to whether Complainant has acquired rights in its mark by virtue of its registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Azerbaijan). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that a mark be registered in the country in which a respondent operates, it being sufficient that a UDRP complainant can demon-strate rights in its mark in some jurisdiction). See also W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010): “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <alakaair.com> and <alsakaair.com> domain names are confusingly similar to Complainant’s ALASKA AIRLINES service mark. The <alakaair.com> domain name contains Complainant’s mark except that it eliminates the space between the terms of the mark and the letter “s” in ALASKA and removes the term “lines” from AIRLINES. Similarly the <alsakaair.com> domain name misspells ALASKA by switching the order of the letters “s” and “a” and also removes the space between the terms of the mark and the word “lines” from AIRLINES. Each of the domain names contains as well the generic top-level domain (“gTLD”) “.com.” These alterations of the mark, made in creating the domain names, do not save them from the realm of con-fusing similarity under the standards of the Policy. See Google Inc. v. N/A/ k gautam, FA 1524232 (Nat. Arb. Forum Nov. 18, 2013, the panel there finding that the misspelling of a mark and the addition of a gTLD to create a domain name did not avoid a conclusion of confusing similarity. See also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) the panel there finding that “the Domain Name is confusingly similar to Complainant’s … mark in that it merely omits the descriptive term ‘personal’.”
Further see Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of the spaces between the terms of a mark of a UDRP complainant and the addition of a gTLD to form a domain name do not establish distinctiveness from the mark under Policy ¶ 4(a)(i)).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that re-spondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been commonly known by either of the <alakaair.com> and <alsakaair.com> domain names, that Respondent is not sponsored by or affiliated with Complainant in any way, and that Complainant has not given Respondent permission to use its ALASKA AIRLINES service mark in a domain name. Moreover, the WHOIS information for the disputed domain names identifies the registrant in each case only as “Nijat Hassanov,” which does not resemble the domain names. On this record we conclude that Respondent has not been commonly known by the <alakaair.com> and <alsakaair.com> domain names so as to have acquired rights to or legitimate interests in either of them within the meaning of Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding that a respondent had no rights to or legitimate interests in a disputed domain name as contemplated in Policy ¶ 4(c)(ii) where there was no evidence in the record indicating that that respondent was commonly known by the domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <alakaair.com> and <alsakaair.com> domain names to redirect unsuspecting internet users to a website featuring generic links to third-party websites, some of which directly compete with the business of Com-plainant, and that Respondent receives pay-per-click fees from the operation of the links displayed on the resolving website. This employment of the domain names is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that a respondent’s diversionary use of a UDRP complainant’s marks in domain names employed to send Internet users to a website that displayed links to that complainant’s competitors, was not a bona fide offering of goods or services).
The Panel therefore finds that complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent is a serial cyber-squatter, having been a respondent to a number of prior UDRP decisions in which it was found to have registered and used in bad faith domain names which were confusingly similar to the marks of others. See NearMap Pty Ltd v. Nijat Hassanov, FA 1453021 (Nat. Arb. Forum Sept. 24, 2012); Staples, Inc. and Staples the Office Superstore, LLC v. Nijat Hassanov, FA 1378255 (Nat. Arb. Forum May 4, 2011); and Target Brands, Inc. v. Nijat Hassanov, FA 1447930 (Nat. Arb. Forum July 10, 2012). Under Policy ¶ 4(b)(ii), this stands as proof that Respondent has also registered and used the instant domain names in bad faith. See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (finding, under Policy ¶ 4(b)(ii), that a series of prior UDRP proceedings were evidence of a pattern of bad faith domain name registrations).
We are also convinced by the evidence that Respondent’s employment of the <alakaair.com> and <alsakaair.com> domain names as alleged in the Complaint disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this too is proof of Respondent’s bad faith in the registration and use of the domain names. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (find-ing, under Policy ¶ 4(b)(iii), that a respondent’s use of a domain name which was confusingly similar to the mark of a UDRP complainant to resolve to a website that diverted Internet users to the websites of that complainant’s commercial competitors constituted evidence of bad faith registration and use).
Moreover, that Respondent evidently seeks to profit commercially by misleading Internet users as to the possibility of Complainant’s affiliation with the disputed domain names is, under Policy ¶ 4(b)(iv), proof of bad faith in the registration and use of the domain name. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003):
Respondent's … use of the … domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’
Finally under this head of the Policy, it is plain that Respondent’s creation of the disputed domain names is in each case an instance of typo-squatting, i.e.: the creation of a domain name that takes advantage of common typing errors made by Internet users in entering into web browsers the marks of those enterprises with which they wish to do business. This is further evidence of Respondent’s bad faith in the creation and use of the domain names. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003):
Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
For all of these reasons, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <alakaair.com> and <alsakaair.com> domain names be TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 27, 2014
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