US Airways, Inc. v. Wolf Sneider
Claim Number: FA1506001626877
Complainant is US Airways, Inc. (“Complainant”), represented by Andrew J. Avsec of Brinks Gilson & Lione, Illinois, USA. Respondent is Wolf Sneider (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <usairway.org>, registered with GoDaddy.com, LLC.
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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 30, 2015; the Forum received payment on June 30, 2015.
On July 1, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <usairway.org> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 2, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 2015 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@usairway.org. Also on July 2, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On July 28, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
(i) Complainant has rights in the US AIRWAYS mark through registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,360,852, registered June 20, 2000). Respondent’s disputed domain <usairway.org> merely removes the space between the letters “s” and “a,” removes the letter “s” from “airways,” and adds the generic top-level domain (“gTLD”) “.org.” These differences are too insignificant to prevent a finding of confusing similarity.
(ii) Respondent has no rights or legitimate interests in the disputed domain name. Based on WHOIS information, Respondent is not commonly known by the disputed domain name, nor has Respondent been affiliated with Complainant in anyway. In addition, Respondent’s use of the <usairway.org> domain, in using a confusingly similar domain name to drive users to a commercial webpage which seeks to mimic Complainant and profit from its competing use, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
(iii) Respondent registered and is using the disputed domain name in bad faith. Respondent has disrupted Complainant’s business through offering competing services using a domain confusingly similar to the US AIRWAYS mark. Respondent is also taking advantage of the confusing similarity between the domain and the US AIRWAYS mark to confuse and attract Internet users for Respondent’s own commercial profit. Finally, Respondent’s use of the disputed domain and the domain name itself indicate that Respondent had knowledge of Complainant’s rights in the US AIRWAYS mark at the time of registration.
B. Respondent
Respondent has failed to submit a Response in this proceeding. The Panel notes that the <usairway.org> domain name was registered on July 2, 2012.
Complainant established that it had rights in the mark contained in the disputed domain name. The disputed domain name is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name 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:
(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’s rights in the US AIRWAYS mark stem from registration of the mark with the USPTO (Reg. No. 2,360,852, registered June 20, 2000). Panels have consistently found that a complainant’s registration of a mark with the USPTO is sufficient to demonstrate their rights in that mark. See Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007) (finding that the complainant had sufficiently established rights in the SKUNK WORKS mark through its registration of the mark with the USPTO). The Panel finds that Complainant has rights in the US AIRWAYS mark under Policy ¶ 4(a)(i).
Complainant also contends that Respondent’s disputed <usairway.org> domain is confusingly similar to the US AIRWAYS mark. Respondent’s disputed domain <usairway.org> merely removes the space between the letters “s” and “a,” removes the letter “s” from “airways,” and adds the gTLD “.org.” It has been previously held that removing spaces from a disputed domain and adding a gTLD does not affect the resemblance of the mark to a disputed domain name. See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”). Similarly, deleting the “s” from a mark does not alter the confusing similarity between a disputed domain and the mark it resembles. See Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from the complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it). The Panel accordingly finds that Respondent’s <usairway.org> domain is confusingly similar to the US AIRWAYS mark.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name 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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent 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 claims that Respondent is not commonly known by the disputed domain name. To support this contention, Complainant points to WHOIS information which lists the Respondent as “Wolf Sneider.” Complainant also claims that Respondent has not been authorized to use the US AIRWAYS mark or been affiliated with Complainant in any way. Previous panels have held that a respondent is not commonly known by a disputed domain name based on WHOIS and other information in the record such as a lack of affiliation. See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). In light of the WHOIS information and lack of authorization the Panel finds that Respondent is not commonly known by the disputed <usairway.org> domain name.
Complainant also argues that Respondent’s use of the <usairway.org> domain, in registering a confusingly similar domain name in an effort to drive users to a commercial webpage, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s domain appears to resolve to a website that displays the US AIRWAYS mark while listing various offers for flights and hotels. Panels have held operating a commercial website that profits off of the confusing similarity between a domain and a mark is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). As the Panel finds that Respondent is using the US AIRWAYS mark to illegitimately operate a for-profit website, it finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Complainant claims that Respondent’s use of the disputed domain name, in displaying a site that operates as a flight aggregation site and redirects users to another travel booking site, competes and disrupts Complainant’s business as a provider of travel booking services per Policy ¶ 4(b)(iii). This Panel holds that Respondent’s offering of services similar to those offered by Complainant constitutes bad faith through competing and disrupting Complainant’s business. See Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel agency and thus operates in the same business as the Complainant. The parties can therefore be considered as competitors. The Panel thus finds that the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which constitutes evidence of registration and use in bad faith under Policy 4(b)(iii).”).
Complainant also claims that Respondent’s registration of the disputed domain name was a deliberate attempt to attract and confuse Internet users to Respondent’s commercial website. Panels have held that where a respondent is found to have registered a domain to take advantage of that domains resemblance to a mark for financial gain, a Policy ¶ 4(b)(iv) finding is appropriate. See AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). This Panel finds that Respondent intentionally uses the confusing similarity between the domain and the US AIRWAYS mark for commercial profit, and thus it holds that Respondent has acted in bad faith under Policy ¶ 4(b)(iv).
Lastly, Complainant argues that Respondent had actual and/or constructive knowledge of Complainant's rights in the US AIRWAYS mark. Complainant argues that Respondent's use of the US AIRWAYS mark and logo on the disputed domain name and that the site operates as a travel booking site indicates that Respondent had actual knowledge of Complainant's mark and rights. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, the Panel infers due to the fame of Complainant's mark and Respondent's use manner of the disputed domain name that Respondent had actual knowledge of Complainant's mark and rights and therefore determines that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <usairway.org> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: August 4, 2015
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