Connecticut Airport Authority v. Zurab Tsertsvadze
Claim Number: FA1902001829581
Complainant is Connecticut Airport Authority (“Complainant”), represented by Russell Anderson of Pullman & Comley, LLC, Connecticut, USA. Respondent is Zurab Tsertsvadze (“Respondent”), Connecticut, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bradley-airport.com>, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 13, 2019; the Forum received payment on February 13, 2019.
On February 13, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <bradley-airport.com> 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 February 18, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 11, 2019 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@bradley-airport.com. Also on February 18, 2019, 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 March 12, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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.
Preliminary Issue: Deficient Response
The Forum was copied on an email from Respondent on February 18th, 2019 in which Respondent alleged that the disputed domain name contains information about Complainant, but did not provide a formal Response. Because the Panel finds the Response fails to comply with ICANN Rule 5, the Panel, chooses not to consider this Response. See Sears Brands, LLC v. Airhart, FA 1350469 (Forum Dec. 2, 2010) (electing to not accept and not consider the response as the response was not in compliance with ICANN Rule 5).
A. Complainant
Complainant is the primary passenger and cargo airport of the State of Connecticut and the Western Massachusetts region. Complainant has common law rights in the BRADLEY INTERNATIONAL AIRPORT (shortened to “Bradley Airport”) mark as it has acquired secondary meaning. Respondent’s <bradley-airport.com> domain name is confusingly similar to Complainant’s mark as it contains the mark in its entirety while adding a hyphen and a “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <bradley-airport.com> domain name. Respondent is not permitted or otherwise authorized to use Complainant’s mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to confuse and attract users to the disputed domain name. Respondent’s use of the disputed domain name does not amount to fair use.
Respondent registered and uses the <bradley-airport.com> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name by creating a likelihood of confusion as to source, sponsorship, endorsement or affiliation of Respondent’s website. Respondent also intentionally holds itself out to be Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Connecticut Airport Authority (“Complainant”), of Windsor Locks, Connecticut, USA. Complainant claims common law rights in the mark BRADLEY AIRPORT, stating that mark has been commonly used to refer to the primary passenger and cargo airport for the State of Connecticut and the Western Massachusetts region. Complainant states the airport’s official name is Bradley International Airport, which it says it has used since at least as early as 1947, in connection with civilian airline services. Complainant has established a website at its domain, <bradleyairport.com> and has registered a related design and service mark. Complainant states that its “marks are distinctive and have achieved secondary meaning.”
Respondent is Zurab Tsertsvadze (“Respondent”), who lists his address as Bradley, Connecticut, USA. No such town shows up in a search for that purported location. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes that the disputed domain name was registered on or about September 24, 2019.
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(f), 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 (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 contends that while it has no trademark registrations for the BRADLEY INTERNATIONAL AIRPORT (shortened to “Bradley Airport”) mark, it has acquired common law rights in the mark. The Panel notes that while a trademark registration is not required under Policy ¶ 4(a)(i), a complainant must show that the mark has acquired secondary meaning to demonstrate common law rights. See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (finding that “The Policy does not require a complainant to own a registered trademark prior to a respondent’s registration if it can demonstrate established common law rights in the mark.”); see also Marquette Golf Club v. Al Perkins, 1738263 (Forum July, 27, 2017) (finding that Complainant had established its common law rights in the MARQUETTE GOLF CLUB mark with evidence of secondary meaning, including “longstanding use; evidence of holding an identical domain name; media recognition; and promotional material/advertising.”). Complainant argues that it has continuously used the BRADLEY AIRPORT mark since 1947 in connection with the airfield to commemorate a fallen airman in 1942. Additionally, Complainant registered the mark “Bradley International Airport Gateway to New England.”
Acquired distinctiveness is shown through proof of secondary meaning. Secondary meaning requires establishing that the public primarily associates the mark in question with certain goods or services originating from the purported mark holder. See AOL LLC v. DiMarco, FA 1275978 (Forum Sept. 9, 2009) (“‘Secondary meaning’ is acquired when ‘in the minds of the public, the primary significance of a product feature . . . is to identify the source of the product rather than the product itself.’”). Secondary meaning generally requires the claimant indicate length and amount of sales under the trademark, the nature and extent of advertising, and consumer association through surveys and media recognition. See also Golden Title Loans, LLC dba 745Cash v. roylee, FA 1618801 (Forum June 23, 2015) (holding, “Relevant evidence of secondary meaning includes continuous and ongoing use of a mark, holding of a domain name identical to the mark, or using the mark in commerce before a disputed domain name is created.” Finding “Complainant has provided evidence of secondary meaning . . . displaying Complainant’s business registration with the state of Tennessee, showing use of the 745-CASH mark since July 2005 . . . showing the creation date as March 30, 2004 of Complainant’s own website <745cash.com>. Complainant also urges that its business phone number is 745-CASH.).
As noted in the findings, Complainant asserts its “marks are distinctive and have achieved secondary meaning.” However, Complainant provides no evidence of the type referred to above. It is unclear when Complainant formed and took over the ownership of the airport, and if it registered itself as holder of a business name. The complaint says the airport was first used for military purposes and named Bradley Airfield in memory of a fallen airman in 1942. There is no documentation provided to support that statement. Nor is there evidence provided to support the assertion that the airport became known as Bradley International Airport in 1947, or that anyone has used, or associates the alleged “common reference” Bradley Airport, with Complainant. Complainant’s registered service mark is not identical or very similar to its own registered domain name. Complainant’s statements, while plausible, are without any proofs beyond self-serving statements that acquired distinctiveness via secondary meaning is present. Complainant fails to provide any evidence of secondary meaning in the mind of the public. The numerical facts regarding airport users alone is not relevant in determining if common law trademark rights are present. The Panel finds that Complainant has failed to show that it has common law rights in the BRADLEY INTERNATIONAL AIRPORT mark through proof of secondary meaning per Policy ¶ 4(a)(i).
Because the Panel concludes that Complainant has not satisfied Policy ¶ 4(a)(i), the Panel declines to analyze the other two elements of the Policy. See Netsertive, Inc. v. Ryan Howard / Howard Technologies, Ltd., FA 1721637 (Forum Apr. 17, 2017) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary); see also Wasatch Shutter Design v. Duane Howell / The Blindman, FA 1731056 (Forum June 23, 2017) (deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)).
The Complainant has NOT proven this element.
The Panel declines to analyze this element.
The Panel declines to analyze this element.
Because Complainant has failed to establish all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be DENIED.
Accordingly, it is Ordered that the <bradley-airport.com> domain name REMAIN WITH Respondent.
Darryl C. Wilson, Panelist
Dated: March 26, 2019
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page