Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin
Claim Number: FA1408001574905
Complainant is Alaska Air Group, Inc. and its subsidiary, Alaska Airlines (“Com-plainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Song Bin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name here at issue is <alaskaair.co>, which is registered with GODADDY.COM, INC.
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 August 13, 2014; the National Arbitration Forum received payment on August 13, 2014.
On August 14, 2014, GODADDY.COM, INC. confirmed by means of an e-mail message addressed to the National Arbitration Forum that the <alaskaair.co> domain name is registered with GODADDY.COM, INC. and that Respondent is the current registrant of the name. GODADDY.COM, INC. has verified that Respondent is bound by the GODADDY.COM, INC. 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 August 15, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 4, 2014 by which Respondent could file a Response to the Complaint, via e-mail to all enti-ties and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@alaskaair.co. Also on August 15, 2014, the Written Notice of the Complaint, notifying Respondent of the e-mail addres-ses 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 September 6, 2014, pursuant to Complainant's request to have the dispute decided 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 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant owns the ALASKA AIRLINES service mark through its registration of the mark with the United States Patent and Trademark Office ("USPTO") (Registry No. 1,561,416, registered October 17, 1989).
Complainant uses the ALASKA AIRLINES mark in connection with the marketing of air transportation services.
Complainant also promotes its business online through use of the domain names <alaskaairlines.com> and <alaskaair.com>.
Respondent registered the <alaskaair.co> domain name on July 21, 2010.
The domain name is confusingly similar to Complainant’s ALASKA AIRLINES service mark.
Respondent has not been commonly known by the disputed domain name.
Complainant has not authorized Respondent to use the ALASKA AIRLINES mark for any purpose.
Respondent is not making either a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name.
Respondent uses the domain name to direct Internet users to a website that features links to websites some of which compete directly with Complainant in the airline industry.
Respondent presumably generates click-through revenue from the operation of the linked web page.
Respondent has no rights to or legitimate interests in the domain name.
The disputed domain name is an example of typo-squatting.
Respondent has demonstrated a pattern of bad faith registration and use of domain names.
Respondent has listed the <alaskaair.co> domain name for sale.
Respondent’s use of the domain name disrupts Complainant’s business.
Respondent uses the disputed domain names to attract and mislead Internet users and seeks to profit from the resulting confusion.
Respondent knew of Complainant and its rights in the ALASKA AIRLINES mark when it registered the domain name.
Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is 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 can-celled 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 to 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 will 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 by virtue of its registration of the mark with the United States Patent and Trademark Office ("USPTO"). See, for example, Priceline.com, Inc. v. Domain Admin / Private Registrations Aktien Gesellschaft, FA 1547179 (Nat. Arb. Forum Apr. 24, 2014) (finding that USPTO registration satisfies the requirement of Policy ¶ 4(a)(i) that a UDRP complainant have rights in a mark in order to advance a claim that a domain name is identical or confusingly similar to that mark).
This is true without regard to whether Complainant has acquired rights in its mark by reason of its registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here China). 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).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review
of the record that Respondent’s <alaskaair.co> domain name is confusingly similar to Complainant’s ALASKA AIRLINES service mark. The domain name contains the term “Alaska” and an abbreviation for the term “Airlines,” removes the space from between the terms of the mark and adds a country code top-level domain (“ccTLD”) “.co,” standing for Columbia. These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Crocs, Inc. v. [Registrant], FA 1043196 (Nat. Arb. Forum Sept. 2, 2007), finding that:
[T]he addition of a ccTLD [to the mark of another in creating a domain name] is irrelevant to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.
See also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms of the mark of a UDRP complainant in forming a domain name and the addition to it of a top level domain do not establish distinctiveness from that mark under Policy ¶ 4(a)(i)).
Finally, as to abbreviating the terms of a mark, see SEMCO Prods., LLC v. dmg world media (uk) ltd, FA 913881 (Nat. Arb. Forum Apr. 9, 2007) (finding, under Policy ¶ 4(a)(i), the <atlhomeshow.com> domain name confusingly similar to a UDRP complainant’s ATLANTA HOME SHOW mark, as “atl” is a common abbreviation for the city of Atlanta).
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 the disputed domain name, and that Complainant has not authorized Respondent to use the service mark ALASKA AIRLINES. Moreover, the relevant WHOIS information reveals that the registrant of the <alaskaair.co> domain name is “song bin,” which does not re-semble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006), the panel there finding that a respondent failed to establish rights to or legitimate interests in the <emitmortgage.com> domain name under Policy ¶ 4(c)(ii) be-cause that respondent was not authorized to register domain names featuring a UDRP complainant’s mark and failed to submit evidence that it was commonly known by the domain name.
We next observe that Complainant asserts, without objection from Respondent, that Respondent is making neither a bona fide offering of goods or services by means of nor a legitimate noncommercial or fair use of the disputed domain name, in that Respondent uses the domain name to redirect Internet users to a website that features links to third-party websites, some of which compete with Complainant in the airline industry, and that Respondent presumably generates click-through revenue from the operation of the linked page. This employment of the domain name is neither a bona fide offering of goods or services under Policy ¶4(c)(i) nor a legitimate noncommercial or fair use of the disputed domain name under Policy ¶4(c)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) the panel there reasoning that:
The disputed domain name, …, currently resolves to a website displaying Complainant’s marks and contains links to Complain-ant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
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We are persuaded by the evidence that Respondent has shown a pattern bad faith in the registration and use of domain names that were confusingly similar to the marks of others. See Backcountry.com, LLC v. Song Bin, FA 1317284 (Nat. Arb. Forum April 30, 2010); Lenovo (Beijing) Ltd. Corp. China v. Bin Song, FA 1430690 (Nat. Arb. Forum April 11, 2012); Karmaloop, inc. v. Song Bin/ Song Bin, FA 1475963 (Nat. Arb. Forum). Under Policy ¶ 4(b)(ii), this stands as evidence that Respondent has registered and uses the instant domain name in 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 domain names under Policy ¶ 4(b)(ii). |
We are persuaded by the evidence that Respondent’s employment of the dis-puted <alaskaair.co> domain name as alleged in the Complaint disrupts Com-plainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in the registration and use of the domain name. See Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (finding that where a respondent’s website featured hyperlinks to websites operating in competition with the business of a UDRP complainant, that respondent’s use of the <redeemaamiles.com> domain name constituted disruption of the complain-ant’s business and demonstrated bad faith in the registration and use of the domain name under Policy ¶ 4(b)(iii)).
We are also convinced by the evidence that Respondent uses the disputed do-main name to attract and mislead Internet users and that it seeks to profit from the resulting confusion. Under Policy ¶ 4(b)(iv), this too shows Respondent’s bad faith in the registration and use of the domain name. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006), the panel there concluding that:
Respondent is using the disputed domain name to operate a web-site which features links to competing and non-competing commer-cial 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).
For 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 domain name <alaskaair.co> be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: September 17, 2014
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