United Airlines, Inc. v. Hildegard Gruener
Claim Number: FA1410001586877
Complainant is United Airlines, Inc. (“Complainant”), represented by Michael C. Henning of United Air Lines, Inc., Texas, USA. Respondent is Hildegard Gruener (“Respondent”), Austria.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <united-com.com> and <united-com.info>, registered with GoDaddy.com, LLC and Wild West Domains, 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 October 27, 2014; the National Arbitration Forum received payment on October 29, 2014.
On October 27, 2014, both GoDaddy.com, LLC, and Wild West Domains, LLC confirmed by e-mail to the National Arbitration Forum that the <united-com.com> and <united-com.info> domain names are registered with the respective regis-trars and that Respondent is the current registrant of the names. GoDaddy.com, LLC, and Wild West Domains, LLC have verified that Respondent is bound by the respective 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 29, 2014, the Forum served the Complaint and all Annexes, includ-ing a Written Notice of the Complaint, setting a deadline of November 18, 2014 by which Respondent could file a Response to the Complaint, via e-mail mes-sage addressed to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@united-com.com, postmaster@united-com.info. Also on October 29, 2014, 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 November 24, 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 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant has for many years used the mark UNITED to promote its airline transportation services.
The UNITED service mark is registered with the United States Patent and Trade-mark Office ("USPTO") (Registry No. 676,462, registered Mar. 31, 1959).
The <united-com.com> domain name was registered by Respondent on May 8, 2013, while the <united-com.info> domain name was registered by Respondent on December 24, 2013.
Those domain names are confusingly similar to the UNITED mark.
Respondent has not been commonly known by either of the domain names.
Complainant has not given Respondent a license to use its UNITED mark.
The <united-com.com> domain name resolves to a website that provides travel agency advertisements that compete with the business of Complainant.
The <united-com.info> domain name resolves to a page hosting hyperlinks for the websites of companies that compete with Complainant for airline ticket sales.
Respondent attempts to profit by way of advertising revenues from its use of the domain names.
Respondent has no rights to or legitimate interests in the domain names.
Respondent has engaged in a pattern of preventing trademark holders from applying their marks to Internet domain names.
Respondent’s use of the domain names disrupts the UNITED business.
Respondent knew of Complainant and its rights in the UNITED mark when it registered the domain names.
Respondent registered and is using the domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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 the respondent’s failure to respond allows all reason-able 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 has rights in the UNITED service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights….
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 Austria). 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 demonstrate rights in its mark in some jurisdiction).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that the <united-com.com> and <united-com.info> domain names are confusingly similar to the UNITED service mark. Each of the domain names contains the entire mark, adding only “-com” and a generic Top Level Domain (“gTLD”), “.com” in one instance and “.info” in the other. These altera-tions of the mark, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See, for example, Borders Props., Inc. v. Hewitt, FA 114618 (Nat. Arb. Forum July 23, 2002):
The added ‘com’ does not defeat a confusing similarity claim because it takes advantage of a common typographical error. It is a basic mistake to type ‘com’ twice without typing the period after the targeted search term . . . [t]herefore, Respondent’s domain name is confusingly similar to Complainant’s mark.
See also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (finding that attaching a gTLD to the mark of another in creating a domain name is “unable to create a distinction capable of overcoming a finding of con-fusing similarity”).
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,
Complainant argues that Respondent has not been commonly known by either the <united-com.com> or the <united-com.info> domain name, and that Com-plainant has not given Respondent a license to use its UNITED mark. More-over, the pertinent WHOIS information identifies the registrant of both domain names only as “Hildegard Gruener,” which does not resemble either of them. On this record, we conclude that Respondent has not been commonly known by either of the contested domain names so as to have acquired rights to or legit-imate interests in them within the meaning of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (finding that a respondent was not commonly known by the <coppertown.com> domain name, and so failed to show that it had rights to or legitimate interests in it as provided in Policy ¶ 4(c)(ii), where there was no evidence in the record, including the relevant WHOIS information, suggesting that that respondent was commonly known by the domain name).
We next observe that Complainant asserts, without objection from Respondent, that the <united-com.com> domain name resolves to a website hosting travel agency advertisements that compete with the business of Complainant, and that the <united-com.info> domain name resolves to a page hosting hyperlinks for the websites of companies that compete with Complainant for airline ticket sales.
This use 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 United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007), a panel there finding no bona fide offering of goods or services by means of a contested domain name under Policy ¶ 4(c)(i) and no legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) where that domain name resolved to a web site that referred Internet users to other sites making commercial offers in competition with the business of a UDRP complainant.
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s employment of the <united-com.com> and <united-com.info> domain names as alleged in the Complaint disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in the registration and use of the domain names. See, for example, H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008):
The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).
We are also convinced by the evidence that Respondent’s use of domain names that are confusingly similar to the UNITED service mark is an attempt to profit commercially from confusion caused among internet users as to the possibility of Complainant’s association with the domain names. Under Policy ¶ 4(b)(iv), this too is proof of Respondent’s bad faith in the registration and use of the domain names. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use of a domain name under Policy ¶ 4(b)(iv) where a respondent employed one that was confusingly similar to the mark of a UDRP complainant to divert to its own website Internet users searching for that complainant’s website, likely profiting in the process).
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 <united-com.com> and <united-com.info> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: November 25, 2014
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