Air Canada v
John Zuccarini
Claim Number: FA0105000097162
PARTIES
Complainant is Air Canada, Quebec, Canada (“Complainant”) represented by David Hill, of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P. Respondent is John Zuccarini, Atlanta , GA, USA (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <aircanda.com> registered with CSL GmbH d/b/a Joker.com.
PANEL
On June 1, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele as Panelist.
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.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on May 8, 2001; the Forum received a hard copy of the Complaint on May 9, 2001.
On May 9, 2001, CSL GmbH d/b/a Joker.com confirmed by e-mail to the Forum that the domain name <aircanda.com> is registered with CSL GmbH d/b/a Joker.com and that Respondent is the current registrant of the name. CSL GmbH d/b/a Joker.com has verified that Respondent is bound by the CSL GmbH d/b/a Joker.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 9, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of May 29, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@aircanda.com by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
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.” 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant asserts that Respondent’s domain name is confusingly similar to its registered mark. Further, Respondent has no rights or legitimate interests in the domain name at issue because Respondent conducts no bona fide business under the domain name. Finally, Respondent has acted in bad faith by using a common misspelling of Complainant’s famous mark to attract unsuspecting Internet users to its web site strictly for commercial gain.
B. Respondent
Respondent has not submitted a Response in this matter.
FINDINGS
Founded in 1964, Complainant is the largest air
carrier in Canada, with passenger transportation comprising 85% of its
operating revenues.
Complainant, together with its partners, provides
scheduled and chartered air transportation to 252 destinations in over 35
countries. Over half of Complainant’s
passengers travel on its transborder, transatlantic, and transpacific flights,
including 1,400 weekly flights between Canada and 50 cities in the United
States.
Complainant
is the owner of numerous Canadian and United States trademark registrations and
applications for its mark AIR CANADA.
Complainant’s
trademark rights in its AIR CANADA mark, based on its trademark filings in
Canada and the United States and on its common law rights under United States
law acquired through the extensive use of the mark, long predate Respondent’s
registration of the domain name <aircanda.com>
on March 12, 2000.
Respondent has used the disputed domain name as a portal to a series of pop up advertisements.
DISCUSSION
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.”
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.
Paragraph 4(a) of the Policy requires that the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Identical and/or
Confusingly Similar
The <aircanda.com> domain name is a misspelling of Complainant’s AIR CANADA mark. The deletion of a letter “a” in Respondent’s domain name does not prevent the domain name from being confusingly similar under Policy ¶ 4(a)(i). See State Farm Mut. Auto. Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name <statfarm.com> is confusingly similar to Complainant’s mark); see also Victoria’s Secret et al v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that misspelling words and adding letters on to words does not create a distinct mark but is nevertheless confusingly similar with Complainant’s marks).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or
Legitimate Interests
Respondent has not demonstrated any rights to the domain name in question. See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. and D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interest where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any such right or interest that it may possess).
Redirecting the domain name to advertisements does not constitute a bona fide offering of goods and services under Policy 4(c)(i) nor is it a noncommercial or fair use of the domain name under Policy 4(c)(iii). See Victoria's Secret et al v. Personal, FA 96491 (Nat. Arb. Forum Feb. 27, 2001) (finding no rights or legitimate interests where Respondent used a domain name confusingly similar to Complainant’s mark and redirected Internet traffic to various websites for the profit of Respondent).
There is no evidence in the record, and Respondent has not come forward to establish that it is commonly known by the name “aircanda,” pursuant to the Policy ¶ 4(c)(ii). See Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that Respondent has no rights or legitimate interests in domain names because it is not commonly known by Complainant’s marks and Respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and
Use in Bad Faith
Because Respondent attracted Internet users to a series of advertisements using a domain name confusingly similar to Complainant’s famous AIR CANADA mark, Respondent’s actions constituted bad faith registration and use under Policy ¶ 4(b)(iv). See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding bad faith where the Respondent attracted users to advertisements).
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.
Accordingly, it is Ordered that the <aircanda.com> domain name be transferred from Respondent to Complainant.
James P. Buchele, Panelist
Dated: June 6, 2001
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