Continental Airlines Inc. v. Liang Tu Hui
Claim Number: FA0712001117471
Complainant is Continental Airlines Inc. (“Complainant”), represented by Michael
C. Henning, of Continental Airlines
Inc., 1600 Smith Street - 15th Floor, Hqslg, Houston, TX 77002. Respondent is Liang Tu Hui (“Respondent”),
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwcontinentalairlines.com>, registered with GoDaddy.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Harold Kalina (ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 5, 2007; the National Arbitration Forum received a hard copy of the Complaint on December 6, 2007.
On December 5, 2007, GoDaddy.com confirmed by e-mail to the National Arbitration Forum that the <wwwcontinentalairlines.com> domain name is registered with GoDaddy.com and that Respondent is the current registrant of the name. GoDaddy.com has verified that Respondent is bound by the GoDaddy.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 December 7, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 27, 2007 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@wwwcontinentalairlines.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 1, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) as Panelist.
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." 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 makes the following assertions:
1. Respondent’s <wwwcontinentalairlines.com> domain name is confusingly similar to Complainant’s CONTINENTAL AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <wwwcontinentalairlines.com> domain name.
3. Respondent registered and used the <wwwcontinentalairlines.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Continent Airlines Inc., is a
Respondent registered the <wwwcontinentalairlines.com> domain name on October 30, 1999. Respondent is using the disputed domain name to resolve to a website that features products and services in direct competition to Complainant.
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 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.”).
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.
Complainant has established sufficient rights in the CONTINENTAL AIRLINES mark through registration with the USPTO pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the complainant has rights to the name when the mark is registered in a country even if the complainant has never traded in that country).
The Panel finds that Respondent’s <wwwcontinentalairlines.com> domain name is confusingly similar to Complainant’s CONTINENTAL AIRLINES mark given the similarity in wording, save for the addition of “www”, which constitutes mere typosquatting and nonetheless retains the dominant feature of the mark. Moreover, the addition of the generic top-level domain “.com” is not relevant to a Policy ¶ 4(a)(i) analysis. See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s domain name <wwwbankofamerica.com> is confusingly similar to the complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Dana Corp. v. $$$ This Domain Name Is For Sale $$$, FA 117328 (Nat. Arb. Forum Nov. 19, 2002) (finding the respondent's <wwwdana.com> domain name confusingly similar to the complainant's registered DANA mark because the complainant's mark remains the dominant feature); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the <wwwcontinentalairlines.com> domain name. Once Complainant sets forth a prima facie case supportings its allegations as it has in the current case, the burden shifts to Respondent to prove that it has rights and legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Respondent’s failure to respond to the Complaint allows the Panel to conclude that Respondent lacks rights and legitimate interests in the <wwwcontinentalairlines.com> domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). However, the Panel will examine the evidence in the record to determine if Respondent has rights and legitimate interests pursuant to Policy ¶ 4(c).
Respondent offers no evidence in the record to suggest that it is commonly known by the <wwwcontinentalairlines.com> domain name, significant in light of the fact that Complainant has used the mark internationally for almost 70 years. Moreover, the WHOIS domain name registration information offers no evidence to bolster Respondent’s case. Finally, Respondent has not alleged any license to use Complainant’s CONTINENTAL AIRLINES mark. The Panel thus finds that Respondent lacks rights and legitimates interests pursuant to Policy ¶ 4(c)(ii). See Foot Locker Retail, Inc. v. Gibson, FA 139693 (Nat. Arb. Forum Feb. 4, 2003) (“Due to the fame of Complainant’s FOOT LOCKER family of marks . . . and the fact that Respondent’s WHOIS information reveals its name to be ‘Bruce Gibson,’ the Panel infers that Respondent was not ‘commonly known by’ any of the disputed domain names prior to their registration, and concludes that Policy ¶ 4(c)(ii) does not apply to Respondent.”); Xerox Corp. v. Anti-Globalization Domains, FA 210224 (Nat. Arb. Forum Dec. 22, 2003) (“[I]t would be difficult for Respondent to demonstrate that it had rights or legitimate interests in the domain name given Complainant's long and substantial use of its unique and famous XEROX mark.”); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s primary use of the <wwwcontinentalairlines.com> domain name is to deceivingly send Internet users to a website that features products and services in direct competition with Complainant. Advertisers listed on Respondent’s website presumably pay Respondent referral fees. Thus, the Panel finds that Respondent’s use of Complainant’s mark within the disputed domain name does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”); see also Diners Club Int’l Ltd. v. Car in Won Australia pty Ltd, FA 338427 (Nat. Arb. Forum Nov. 10, 2004) (“Since Complainant and Respondent both offer credit card accounts for sale, the Panel finds that Respondent is using the domain names to offer strictly competing services with Complainant, which would be legitimate had Respondent not incorporated Complainant’s mark in a confusingly similar domain name to accomplish this end.”); see also Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors).
Complainant has asserted that Respondent engaged in
typosquatting by registering the instant disputed domain names. Typosquatting describes the situation where a
domain name is registered with the intent of diverting Internet users by way of
common typing errors to a different website.
Here Respondent omitted the “.” after “www,” which evidences such an
attempt to divert Internet users away from their intended website. The Panel finds that Respondent’s use of
typosquatting is itself evidence that Respondent lacks rights or legitimate
interests pursuant to Policy ¶ 4(a)(ii).
See Diners Club Int’l Ltd. v.
Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum
June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of
the complainant’s DINERS CLUB mark, was evidence in and of itself that the
respondent lacks rights or legitimate interests in the disputed domain name vis
á vis the complainant); see also Nat’l
Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan.
21, 2003) (“Typosquatting … as a means of redirecting consumers against their
will to another site, does not qualify as a bona fide offering of goods or
services, whatever may be the goods or services offered at that site.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <wwwcontinentalairlines.com> domain name resolves to a website that solely
lists products and services offered by Complainant’s competitors. The Panel thus finds that Respondent’s
registration of the <wwwcontinentalairlines.com> domain name was conducted in bad faith to disrupt
Complainant’s business under Policy ¶ 4(b)(iii). See Schering Corp. v. NGS Enters., Ltd, FA
198013 (Nat. Arb. Forum Nov. 7, 2003) (“The Panel declines to adopt a narrow
interpretation of the term ‘competing,’ as urged by Respondent . . . The Panel
agrees with Complainant that at least some confusion and/or diversion of
consumers is likely here, even though Complainant's and Respondent's tablets
address different medical issues.”); see
also Surface Prot. Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5,
2001) (finding that, given the competitive relationship between the complainant
and the respondent, the respondent likely registered the contested domain name
with the intent to disrupt the complainant's business and create user
confusion); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶
4(b)(iii) [and] (iv).”).
Respondent’s use of the <wwwcontinentalairlines.com> domain name intentionally attracts Internet users to Respondent’s website for commercial gain by creating a likelihood of confusion as to Complainant’s affiliation of the website and disputed domain name. Internet users seeking Complainant’s products and services would likely find Respondent’s website due to its confusing similarity to Complainant’s mark. Such users would then be offered competiting products, and consequentially be confused as to Complainant’s source or affiliation with the website or disputed domain name. Thus, the Panel finds that Respondent’s registration of the disputed domain name constitutes bad faith under Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
The Panel finds that Respondent’s
attempts to take advantage of common typing errors in its domain name
registration constitutes bad faith pursuant to Policy ¶ 4(a)(iii). See
Black & Decker Corp. v. Khan,
FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the
<wwwdewalt.com> domain name was registered to “ensnare those individuals
who forget to type the period after the ‘www’ portion of [a] web-address,”
which was evidence that the domain name was registered and used in bad faith); see also Sports Auth. Mich., Inc. v. Skander,
FA 135598 (Nat. Arb. Forum Jan. 7, 2002) (stating that “[b]y registering the
‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent
profits on the goodwill of [Complainant’s] protected marks and primary Internet
domain names,” which is evidence of bad faith registration and use).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwcontinentalairlines.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: January 15, 2008
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