American Airlines, Inc. v.
Demand Domains, Inc.
Claim Number: FA0809001224762
PARTIES
Complainant is American Airlines, Inc. (“Complainant”), represented by Kristin
J. Harkins, of Conley Rose, P.C.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aavcations.com> (the “Domain Name”),
registered with Internet Internal Affairs Corporation.
PANEL
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.
Christopher Gibson as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on September 16, 2008; the
National Arbitration Forum received a hard copy of the Complaint on September 18, 2008.
On September 17, 2008, Internet Internal Affairs Corporation confirmed
by e-mail to the National Arbitration Forum that the <aavcations.com> Domain
Name is registered with Internet Internal
Affairs Corporation and that the Respondent is the current registrant of
the name. Internet Internal Affairs Corporation has verified that Respondent
is bound by the Internet Internal Affairs
Corporation 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 September 30, 2008, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of October 20, 2008 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@aavcations.com by
e-mail.
A Deficient Response that did not comply with Supplemental Rule 5(a) was
received on October 21, 2008 (the hardcopy of
the Response was received after the deadline). Because Respondent filed a late response, it is within the sole
discretion of the Panel as to the
amount of weight to be given Respondent’s submission. See Telstra
Corp. v. Chu, D2000-0423 (WIPO June 21,
2000) (finding that any weight to be given to the lateness of the response is
solely in the discretion of the panelist).
However, the Panel in this case decides to accept the Response, particularly
because Complainant has not been prejudiced in the presentation of its case.
An Additional Submission was submitted by the
Complainant on October 28, 2008 and was received in a timely manner according
to Supplemental Rule 7.
On October 28, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Christopher Gibson as Panelist.
RELIEF SOUGHT
Complainant requests that the Domain Name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant, American Airlines, Inc., is engaged in the business of air transportation and related services and is one of the world’s largest airlines. Complainant has acquired a nationwide reputation for quality goods and services, and has accumulated substantial public goodwill. In the course of its business, Complainant has acquired extensive rights in numerous trade names, trademarks and service marks. Complainant advertises, promotes and sells its goods and services directly to the ultimate consumer as well as through travel agencies and other third parties, and the methods of advertising, promoting and sales include the Internet.
Complainant has devoted
considerable efforts to advertise and promote its services under the mark “AA”
and has developed widespread recognition and fame in the marketplace for the
services offered under the mark AA.
Complainant has submitted evidence of its substantial trademark rights. Complainant has adopted and has developed
substantial rights and goodwill in the mark “AA,” as used alone and with
related designs, which Complainant has continuously used since at least as
early as December 1935. Complainant has
submitted certificates of registration for trademark registration Nos. 514,292,
514,293 and 893,040 for the marks AA and AA (and design). Complainant has also adopted and has
developed substantial rights and goodwill in the mark AA.COM, as used alone and
with related designs, which Complainant has continuously used since at least as
early as February 5, 1998. Complainant
has submitted certificates of registration for trademark registration Nos.
2,339,639 and 2,985,493 for the marks AA.COM and AA.COM (and design). Complainant has also adopted and developed
substantial rights and goodwill in an entire family of registered marks that
incorporate the term “AA” with other words and designs, including the marks AA
AMERICAN (and design), AADVANTAGE (and design), AANYTIME, AADVANTAGE,
AASSOCIATION FARES (and design), BUYAAMILES, SHAREAAMILES, SHAARE MILES,
DEPOSITAAMILES (and design) and REDEEMAAMILES.
In this regard, Complainant has submitted certificates of registration
for trademark registration Nos. 785,759; 1,228,737; 1,735,318; 2,187,483;
2,251,007; 2,718,921; 2,755,924; 2,804,649; 2,990,927 and 3,339,693. Complainant has used and continues to use all
of these marks in commerce in connection with air transportation services and
related services in the
Complainant maintains that because
AA is a well-known and famous mark, and also as a result of longstanding,
continuous use throughout the
Complainant states that it has developed substantial common law rights in the service mark AAVACATIONS.COM, which is prominently displayed on Complainant’s website <aavacations.com> to advertise and promote Complainant’s services. Complainant has submitted representative pages from its website at <aavacations.com>, obtained from a search conducted on August 25, 2008. Complainant states that it has enjoyed continuous and substantially exclusive use of the service mark AAVACATIONS.COM since at least as early as October 1997. Through its <aavacations.com> website, Complainant indicates that travel services were sold totaling approximately $170,000,000 in 2007, and these sales involved over 194,000 air travelers. In addition, the <aavacations.com> website was viewed by Internet users over 42,000,000 times in 2007. As such, the AAVACATIONS.COM mark has come to be accepted by the purchasing public as distinguishing Complainant’s air transportation and related travel services from the goods and services of others.
Confusing similarity: Complainant contends that the Domain Name is confusingly similar to the family of marks in which Complainant has rights. The Domain Name <aavcations.com> is confusingly similar to Complainant’s AA mark because the Domain Name incorporates Complainant’s mark in its entirety and merely adds a misspelling of the descriptive term “vacations” plus the top level domain “.com”. The dominant portion of the Domain Name is identical to the Complainant’s well-known AA mark, and adding a misspelled descriptive term plus a top level domain fails to detract from the overall commercial impression provided by the AA mark. Similarly, the Domain Name <aavcations.com> is confusingly similar to Complainant’s common law mark AAVACATIONS.COM because the Domain Name differs from Complainant’s mark only by a deleted letter “a”, thereby misspelling the word “vacations.” Thus, the Domain Name is essentially identical to the Complainant’s AAVACATIONS.COM mark, and misspelling the word “vacations” fails to detract from the overall commercial impression provided by the AAVACATIONS.COM mark. Respondent’s registration and use of the Domain Name, which is confusingly similar to Complainant’s registered AA mark, and also represents typographical errors of Complainant’s common law AAVACATION.COM mark and website <aavacations.com>, is misleading and causes confusion to consumers who are diverted away from Complainant’s website where Internet users can book airline tickets and make related travel plans through the Complainant. Respondent has registered a confusingly similar variation of the Complainant’s marks and domain name so that Internet users attempting to reach the Complainant’s website will be redirected to Respondent’s website.
No rights or legitimate interests: Complainant contends that Respondent has no rights or legitimate interests in the Domain Name. Respondent does not use the Domain Name in connection with a bona fide offering of goods or services. Complainant has not licensed or otherwise permitted Respondent to use any of Complainant’s marks or to use any domain name incorporating any of Complainant’s marks, including Complainant’s famous AA mark and common law AAVACATIONS mark. Instead, Respondent is using the Domain Name as an opportunistic attempt to attract Complainant’s customers to Respondent’s website by creating a likelihood of confusion with Complainant. The Domain Name resolves to a website featuring category links along the left side of the home page, some of which include the “Aav” portion of “aavcations,” such as “Aav Vector” and “Aav Service.” When an Internet user clicks on any of these category links, the <aavcations.com> website brings up “Sponsored Listings” of commercial websites from which Respondent presumably receives click-through fees. The <aavcations.com> website also provides a search engine that allows Internet users to input a search string to bring up relevant “Sponsored Listings” of commercial websites. When the search string “American Airlines” is entered, the Internet user is presented with a “Sponsored Listing” of commercial websites offering travel and vacation planning services in competition with Complainant, including the websites of competitor airlines. Alongside the “Sponsored Listings” are “Related Searches” featuring additional category links, such as “American Airlines” and “Delta Airlines Website,” that allow the Internet user to continue searching. The <aavcations.com> website also features category links at the bottom of the home page, including “Vacation Deals – Great vacation deals online.” Clicking on this category link redirects the user to the website <wwwonlinetravel.com>, which features vacation and travel-related category links, such as “Discount Airfare” and “All Inclusive Vacation.” When a user clicks on any of these category links, the wwwonlinetravel.com website brings up “Sponsored Listings” of vacation and travel-related commercial websites, including the websites of competitor airlines and other third parties offering services in competition with Complainant. Respondent’s use of a Domain Name that is confusingly similar to Complainant’s marks for the purpose of diverting Internet users to Respondent’s site for its own commercial gain is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
No available evidence suggests that Respondent is now or has ever been commonly known by the Domain Name. Moreover, Respondent’s WHOIS information is shielded from the public by “Whois Privacy Protection Service, Inc.” and the Respondent’s true identity was only made known to the Complainant by the National Arbitration Forum after the initial Complaint was filed. The mere fact that Respondent has shielded its identity through a privacy protection service supports a conclusion that the Domain Name at issue is not related to a legitimate interest by Respondent.
Bad faith: Complainant asserts that Respondent is a “typo squatter” because it registered and is using the Domain Name comprised of a misspelled variation of the Complainant’s <aavacations.com> domain name, which is based on Complainant’s famous AA and common law AAVACATIONS.COM marks. Typosquatting is evidence of bad faith registration and use in violation of Policy ¶ 4(a)(iii). The registration and use of the Domain Name also clearly disrupts the Complainant’s business by diverting Internet traffic away from Complainant’s website <aavacations.com>. Moreover, the Domain Name resolves to a website featuring commercial websites from which Respondent presumably receives click-through fees, and some of these websites offer vacation and travel related services in competition with Complainant. Respondent registered the Domain Name for the primary purpose of intentionally attempting to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with the Complainant in violation of ICANN Policy ¶ 4(b).
Respondent also used the private domain name registration service, Whois Privacy Protection Service, Inc., to register the Domain Name, and Respondent continues to shield its true identity from the public through this service. Therefore, Whois Privacy Protection Service, Inc. c/o Whois Agent is the party identified in the WHOIS information as the registrant rather than Demand Domains, Inc. The fact that Respondent used a proxy service to register the Domain Name, and continues to use the proxy service to hide its true identity, is further evidence that Respondent registered and is using the Domain Name in bad faith.
Moreover, given that Respondent Demand Domains, Inc. has the same mailing address as the Registrar Internet Internal Affairs Corporation, which is affiliated with the Registrar eNom, Inc., an inference can be drawn that the Respondent Demand Domains, Inc. and the Registrar eNom, Inc. are related, although the exact nature of the relationship is not known. As recognized by a previous National Arbitration Forum panel, this Respondent-registrar eNom, Inc. has been “exploiting domain names it has acquired as owner-user to the detriment of legitimate rights holders” and the panel expressed “sharp disdain for the rather egregious conduct involved.” See Davis Vision, Inc. v. Demand Domains, Inc., FA 1142731 (Nat. Arb. Forum Mar. 26, 2008) (citing Paxar Americas, Inc. v. eNom, Inc., FA 980114 (Nat. Arb. Forum June 22, 2007)). Thus, the panel found in favor of Complainant on all three elements of the Policy, and ordered transfer of the disputed domain name <davisvison.com>, which is also a misspelled variation of the complainant’s mark, as in the present case.
Therefore, upon information and belief, Respondent registered the Domain Name with knowledge of Complainant’s rights in the AA and the AAVACATIONS.COM marks, as well as Complainant’s rights in the domain name <aavacations.com>. Respondent’s registration of the Domain Name containing Complainant’s famous AA mark and a misspelling of Complainant’s common law AAVACATIONS.COM mark, with knowledge of Complainant’s rights in these marks, is evidence of bad faith registration and use in violation of ICANN Policy ¶ 4(a)(iii). Respondent’s conduct, knowing full well that it has no right to use Complainant’s marks, demonstrates that it is knowingly, willfully and with a bad faith intent, trading on the value of, and interfering with, Complainant’s right to use its marks in commerce.
B. Respondent
Respondent is the registrant of the Domain Name <aavcations.com>. Respondent
alleges that it has no knowledge of Complainant’s claimed trademark rights in
the Domain Name <aavcations.com>. Respondent states that it has a policy
against registering or holding domain names in derogation of legitimate rights
holders. Respondent respectfully
disagrees with Complainant’s allegation that it registered the Domain Name in
bad faith. However, in accordance with its aforementioned policy, on September
19, 2008, when Respondent received notification through Whois Privacy
Protection Service, Inc. that a UDRP complaint had been filed, representative
for Respondent sent an email to counsel for Complainant, offering free and
immediate transfer of the Domain Name in an effort to settle the matter quickly
and expeditiously. (Respondent has
submitted a copy of this communication and several other communications between
the parties, as described below). Respondent
did not receive a response regarding its offer. On September 23, 2008,
representative for Respondent sent a follow-up email to counsel for Complainant,
again offering free and immediate transfer of the Domain Name to Complainant.
Respondent did not receive a response to this offer. On October 3, 2008, representative for
Respondent again sent a follow-up email to counsel for Complainant, offering
free and immediate transfer of the Domain Name to Complainant. Despite repeated
attempts, Respondent did not receive a response either accepting or rejecting
Respondent’s offer of free and immediate transfer of the domain.
On October 10, 2008, representative for Respondent sent another
follow-up email to counsel for Complainant, once again offering free and
immediate transfer of the Domain Name to Complainant. On October 15, 2008, counsel for Complainant
responded rejecting Respondent’s offer of free and immediate transfer of the Domain
Name. On October 15, 2008, corporate
counsel for Respondent, in an effort to reach a quick and efficient resolution
to this matter, called counsel for Complainant in order to alleviate any
concerns Complainant may have about accepting Respondent’s good faith offer of
free and immediate transfer of the Domain Name. Corporate counsel for
Respondent left a voice message and sent a follow-up email to counsel for
Complainant, once again offering free and immediate transfer of the Domain Name
to Complainant and offering to discuss any points of concern, with a view
towards quick resolution of the matter, including immediate and free transfer
of the Domain Name. Corporate counsel
for Respondent never received a call back from counsel for Complainant.
Instead, on October 16, 2008, counsel for Complainant responded via email,
rejecting Respondent’s offer of free and immediate transfer of the Domain Name.
Respondent is not aware of Complainant’s purported trademark rights for
“AA Vacations” and was not aware of Complainant’s claim of alleged common law
rights until receipt of the complaint in the current UDRP action. Respondent
has acted with the utmost good faith, responding promptly upon receipt of this
action and with multiple offers of immediate transfer the Domain Name <aavcations.com>. Complainant has
rebuffed each such offer. In light of
the foregoing, Respondent respectfully requests that the Panel dismiss the
complaint inasmuch as Respondent has acted only in good faith. Upon dismissal,
Respondent agrees to immediate transfer of the Domain Name to Complainant. In the alternative, Respondent respectfully
requests that the Panel refrain from making any formal finding that Respondent
acted in “bad faith.” Rather, Respondent respectfully requests that the Panel
simply endorse Respondent’s offer to transfer the Domain Name to Complainant.
C. Complainant’s Additional Submission
In its Additional Submission, Complainant has responded to the
Respondent’s statements about its effort to settle this matter. Complainant claims that Respondent’s effort
to portray itself as helpful and cooperative is merely an attempt to divert the
Panel’s attention away from the Respondent’s egregious behavior and avoid an
adverse finding that reveals the Respondent’s bad faith use of the Domain Name
and the associated website. Respondent
is trying to focus the Panel’s attention solely on its conduct following the
filing of the UDRP complaint. However,
it is the conduct prior to filing the complaint that is relevant: Respondent’s
registration and use of a confusingly similar Domain Name to redirect Internet
users to third-party commercial websites in direct competition with the
Complainant. Through this conduct,
Respondent benefits by receiving click-through fees while the Complainant
suffers due to interference with its business and injury to its reputation and
marks.
Complainant also asserts that Respondent’s claim of lack of knowledge
of Complainant’s marks is clearly false.
Respondent offers no explanation regarding how it could have
legitimately conjured up the Domain Name <aavcations.com>,
which is nothing more that a typographical error of the Complainant’s domain
name <AAvacations.com>. There is
no reasonable explanation for the Respondent’s behavior and Respondent is a
domain name typosquatter. This fact
shows bad faith registration in violation of the Policy ¶4(a)(iii). Respondent deliberately registered the Domain
Name with knowledge of the Complainant’s trademark rights and has made a business
of click-through fees to the detriment of Complainant.
Complainant asserts that Respondent makes little or no effort to
dispute any of the allegations presented in the Complaint. Instead, Respondent urges the Panel to
dismiss the complaint or refrain from making any formal finding that Respondent
acted in bad faith and stipulates to the immediate transfer of the Domain Name.
Complainant maintains that the Respondent’s approach raises several questions:
why is Respondent so insistent that the Panel forego a decision on the merits
and so willing to transfer the Domain Name?
According to Complainant, this evidences that Respondent has no rights
or legitimate interests in the Domain Name and is using it in bad faith. The Respondent is a cybersquatter and should
not be permitted to avoid a decision on the merits merely because it has agreed
to transfer the Domain Name. Complainant
indicates that Respondent, Demand Domains, Inc., has been the respondent in 14
decisions since August 2006, 13 of which resulted in the transfer of the
disputed domain name. Of these 13 cases,
Respondent failed to file a response in 3, argued against transfer in 1, and
employed its current tactic of agreeing to transfer in the remaining 9 cases.
Complainant contends that Respondent’s filing of a stipulation to
transfer does not preclude the Panel from ruling on the merits. Complainant refers to previous cases in which
UDRP Panels have ruled against the Respondent and found bad faith, in cases in
which the disputed domain name was a misspelled variation of the complainant’s
mark, and despite the Respondent’s willingness to transfer the disputed domain
names, because the complainants had invoked the Policy, paid the appropriate
fee, and requested a reasoned decision.
Similarly, here the Complainant contends that a decision on the merits
is warranted to prevent Respondent from avoiding the consequences associated
with its egregious typosquatting practices.
FINDINGS
1. Complainant, American Airlines, Inc., is engaged in the business of air transportation and related services and is one of the world’s largest airlines.
2.
Complainant has acquired extensive rights in
numerous trade names, trademarks and service marks. Complainant’s AA mark is well-known, used both
alone and with related designs continuously since at least as early as December
1935. Complainant has also developed
substantial rights and goodwill in an entire family of registered marks that
incorporate the term “AA” with other words and designs, including the marks AA
AMERICAN (and design), AADVANTAGE (and design), AANYTIME, AADVANTAGE,
AASSOCIATION FARES (and design), BUYAAMILES, SHAREAAMILES, SHAARE MILES,
DEPOSITAAMILES (and design) and REDEEMAAMILES.
3.
Complainant has also developed substantial
common law rights in the service mark AAVACATIONS.COM, through its continuous
and substantially exclusive use since at least as early as October 1997. Through its <aavacations.com> website,
Complainant has sold travel services totaling approximately $170,000,000 in
2007, and these sales involved over 194,000 air travelers.
4.
The Domain Name <aavcations.com> was registered by the Respondent on
September 13, 2007.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 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.
The Panel finds that the Domain Name <aavcations.com> is confusingly
similar to Complainant’s AAVACATIONS.COM mark.
The proper analysis under paragraph 4(a)(i) of the Policy focuses on comparing the Domain Name <aavcations.com> to Complainant's AAVACATIONS.COM mark to assess the degree of similarity between the two and its likely potential to cause confusion of Internet users. See AOL LLC v. Loto LLC, FA 1075473 (Nat. Arb. Forum November 2, 2007). From a simple comparison of the Domain Name and the Complainant’s mark, no doubt exists that the Domain Name is confusingly similar to that mark. The only differences between them are the deletion of the letter "a" from the Domain Name. See Interflora, Inc. v. Whois Privacy Protection Service, Inc., FA 796384 (Nat. Arb. Forum Nov. 1, 2006) (holding that creating a domain name that mimics a common typing or spelling error does not distinguish the domain name <inteflora.com> from Complainant’s mark INTERFLORA). It is well‑established in UDRP precedent that minor variations, such as adding or deleting a letter or letters, are insufficient in and of themselves, when used in forming a domain name that results from modifying the mark, to confer requisite and sufficient distinctiveness to that name to avoid user confusion. See DAVIS VISION, Inc. v. Demand Domains, Inc., FA0802001142731 (Nat. Arb. Forum Mar. 26, 2008).
Therefore, the Panel finds that the Domain Name <aavcations.com> is confusingly similar to Complainant’s AAVACATIONS.COM mark as to cause confusion; hence, Complainant has satisfied its burden under paragraph 4(a)(i) of the Policy.
Respondent has not provided any basis that, under the
circumstances here, would legitimize a claim to the Domain Name under
paragraph 4(c) of the Policy. No
evidence exists that Complainant has authorized Respondent to use Complainant's
AAVACATIONS.COM or AA marks, nor does Complainant have any relationship or
association whatsoever with Respondent.
Further, there is no evidence that Respondent has ever been commonly
known by the Domain Name.
Respondent has not sought to contend otherwise.
Complainant contends that Respondent is using the website resolving from the <aavcations.com> Domain Name to display hyperlinks to third-party websites, some of which are in direct competition with Complainant, allegedly for “click-through” fees. The Panel finds that Respondent’s use of the Domain Name in this manner is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”); TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding no bona fide offering of goods or services where Respondent used Complainant’s marks to divert Internet users to a website displaying a series of links, some of which linked to websites of the Complainant’s competitors).
Moreover, since
Respondent's use of the Domain Name is clearly commercial in nature, that use
does not constitute either a legitimate noncommercial or fair use, and hence
does not fall within paragraph 4(c)(iii) of the Policy. Further, since
Respondent's use of the name infringes Complainant's trademark rights, that use
is not bona fide within paragraph 4(c)(i) of the Policy.
Accordingly, the
Panel concludes that Respondent has no rights or legitimate interests in the Domain
Name within paragraphs 4(a)(ii) and 4(c) of the Policy.
The Panel acknowledges that,
following receipt of the Complaint, the Respondent has made overtures to
Complainant in an effort to obviate the need for a formal decision.
Notwithstanding Respondent's beseeching to the contrary, however, the Panel
finds that Respondent’s actions constitute bad faith registration and use of
the Domain Name. In Graebel Van
Lines, Inc. v.
“Respondent has admitted in his
response to the complaint of Complainant that it is ready to offer the transfer
without inviting the decision of the Panel in accordance with the Policy. However, in the facts of this case, the Panel
is of the view that the transfer of the disputed domain name deserves to be
along with the findings in accordance with the Policy.”
The Panel here is persuaded by the reasoning and decision in DAVIS VISION, Inc. v. Demand Domains, Inc., FA0802001142731 (Nat. Arb. Forum Mar. 26, 2008), particularly because that case involved a similar instance of typosquating by the same Respondent as named in the instant case. The Respondent appears to be engaged in a pattern of typosquatting in relation to trademarks owned by third-parties, through the device of omitting a letter (or two) but otherwise maintaining a close similarity to the particular mark in question, and then linking that disputed domain name to a click-through site offering links to services which compete with those of the trademark owner. The panel in DAVIS VISION reasoned as follows:
“Though Respondent would like the Panel to narrowly focus its assessment as to whether Respondent’s conduct amounted to bad faith solely from the perspective of its repeated offers to transfer the name, at no cost, to Complainant, those actions are not the only guidepost here by any means. This is not the conduct which provoked Complainant into filing its Complaint. Rather, that conduct ‑ which Complainant emphatically and clearly states in its Complaint but which Respondent completely ignores in its Response ‑ is Respondent's use of the name, which contains a confusingly similar version of Complainant's DAVISVISION mark, as an instrumentality to point Internet users to a website that itself provides links to third‑party services directly competitive with Complainant's offerings made under its mark. This, in turn, causes confusion of Internet users from which Respondent benefits ‑ apparently through click‑through revenue, while Complainant suffers by incurring injury to its mark and reputation.”
See also Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (finding that capitalizing on the typographical error of an Internet user constitutes typosquatting, which is evidence of bad faith use and registration); see also Countrywide Financial Corporation v. Stop2Shop c/o GV, FA 1138258 (Nat. Arb. Forum Mar. 3, 2008) (using a confusingly similar domain name to receive click-through fees and profit from the goodwill associated with Complainant’s mark constitutes bad faith registration and use).
The Panel is satisfied on the evidence submitted by the Complainant that the Domain Name was in all likelihood registered precisely because it was closely similar to the trademark of the Complainant and with knowledge of the traffic that it would likely attract to the Respondent’s site. The Panel views Respondent’s actions, with respect to the Domain Name and prior to the filing of the complainant, as constituting bad faith registration and use in violation of the Policy.
DECISION
Having established all three elements required under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aavcations.com> Domain Name be TRANSFERRED
from Respondent to Complainant.
Christopher Gibson, Panelist
Dated: November 23, 2008
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