American Airlines, Inc. v.
Claim Number: FA1001001305281
Complainant is American Airlines, Inc. (“Complainant”), represented by Kristin
Jordan Harkins, of Conley Rose, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwamericanairlanes.com>, registered with Compana, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 27, 2010; with its Complaint, Complainant also chose to proceed entirely electronically under the new Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”) and the new Forum’s Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (“Supplemental Rules”) by submitted an “opt-in” form available on the Forum’s website.
On January 29, 2010, Compana, Llc confirmed by e-mail to the National Arbitration Forum that the <wwwamericanairlanes.com> domain name is registered with Compana, LLC and that Respondent is the current registrant of the name. Compana, LLC has verified that Respondent is bound by the Compana, LLC 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 February 3, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 23, 2010 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@wwwamericanairlanes.com, and texasipa@gmail.com. Also on February 3, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 4, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 (effective March 1, 2010, but opted-in to by Complainant for this case) "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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:
Complainant is among the world’s largest air transport and freight service companies.
Complainant owns numerous trademarks with the United States Patent and Trademark Officer (“USPTO”) for its AMERICAN AIRLINES mark (including Reg. No. 514,294, issued on July 27, 1948).
Respondent registered the contested <wwwamericanairlanes.com> domain name on May 12, 2005.
Respondent’s domain name resolves to a website displaying both a search engine and third-party links to Complainant’s competitors in the air travel business.
Respondent receives click-through fees for each visit by an Internet to one of these links.
Respondent’s <wwwamericanairlanes.com> domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark.
Respondent is not commonly known by the disputed domain name, and Complainant given Respondent permission to use Complainant’s AMERICAN AIRLINES mark.
Respondent does not have any rights or legitimate interests in the domain name <wwwamericanairlanes.com>.
Respondent’s use of the disputed domain name to divert Internet users seeking Complainant’s <americanairlines.com> website disrupts Complainant’s air travel and booking business by creating confusing similarity between Complainant’s AMERICAN AIRLINES mark and the disputed domain name.
Respondent registered and uses the disputed <wwwamericanairlanes.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the domain name was registered and is being used by Respondent 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."
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant asserts that Respondent’s <wwwamericanairlanes.com> domain name is confusingly
similar to Complainant’s AMERICAN AIRLINES mark. Respondent’s domain name differs from
Complainant’s mark in the following ways: (1) it does not have a period after
the “www,” (2) it contains a misspelled version of Complainant’s mark by
replacing the letter “i” with the letter “a” in the word “airlines,” and (3) it
adds the generic top-level domain (“gTLD") “.com.” A domain name that leaves out the period
between the “www” and the domain name, and contains a misspelled version of the
Complainant’s mark fails to avoid a finding of confusing similarity between the
domain name and the mark. See
The
addition of a gTLD is irrelevant in distinguishing a disputed domain name from
a competing mark because every domain name must include a gTLD. See Nev.
State Bank v. Modern Ltd., FA 204063 (Nat. Arb. Forum Dec. 6, 2003):
It has been established that
the addition of a generic top-level domain is irrelevant when considering
whether a domain name is identical or confusingly similar under the Policy.
See
also Reese v. Morgan, FA 917029 (Nat.
Arb. Forum Apr. 5, 2007) (finding that the addition of the generic top-level
domain “.com” is insufficient to differentiate a disputed domain name from a
mark).
Therefore,
the panel finds that Respondent’s <wwwamericanairlanes.com>
domain name is
confusingly similar to Complainant’s AMERICAN AIRLINES trademark pursuant to
Policy ¶ 4(a)(i).
Complainant maintains that Respondent has no rights to or legitimate interests in the disputed domain name. Complainant is required to make out a prima facie case in support of these allegations. Once Complainant has produced such a prima facie case, the burden shifts to Respondent to show that it has rights to or legitimate interests in the disputed domain name. See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by a complainant, the burden shifts to a respondent to demonstrate its rights or legitimate interests in a disputed domain name; see also Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008):
It
is well established that, once a complainant has made out a prima facie case in
support of its allegations, the burden shifts to respondent to show that it
does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.
Complainant has produced a prima facie case. Owing to
Respondent’s failure to respond to these proceedings, we may presume that Respondent
does not have any rights to or legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002):
[B]ased on Respondent's failure to respond, it is presumed
that Respondent lacks all rights and legitimate interests in the disputed
domain name.
See also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights to or legitimate interests in a contested domain name where a respondent failed to respond to a complaint filed under the Policy). We will nonetheless examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant submits, and Respondent does not deny, that the disputed domain name resolves to a website displaying both a search engine and third-party links to the websites of Complainant’s competitors, and, further, that Respondent receives click-through fees in reference to the visits of Internet users to those links. Respondent’s use of the disputed domain name as alleged is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use of the domain pursuant to Policy ¶ 4(c)(iii). See Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that a respondent was not using contested domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use where that respondent used the domain names to divert Internet users to a website that offered services competing with those offered by a complainant under its marks); see also ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting a respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name where that respondent was using a domain name to operate a website containing links to various competing commercial websites, which the panel found not to be a use of the domain in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii)).
We also observe that Complainant contends, without objection from Respondent, that Respondent is not commonly known by the disputed domain name, and that Complainant has not given Respondent permission to use Complainant’s AMERICAN AIRLINES mark. The WHOIS information for the disputed domain name reveals the registrant to be “Texas International Property Associates,” and there is no further evidence suggesting that Respondent is commonly known by the disputed domain name. We are therefore constrained to conclude that Respondent is not commonly known by the disputed domain name, so as to possess rights to or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating that the fact that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” is a factor in determining that Policy ¶ 4(c)(ii) does not apply); see also IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that a respondent failed to establish rights or legitimate interests in the <emitmortgage.com> domain name where that respondent was not authorized to register domain names featuring a complainant’s mark and failed to submit any evidence suggesting that it was commonly known by a disputed domain name).
Finally under this head of the Complaint, Complainant asserts that Respondent is taking advantage of Internet users who attempt to reach Complainant’s website by capitalizing on a common misspelling of Complainant’s AMERICAN AIRLINES mark. Respondent does not contest this allegation. Respondent’s behavior, as alleged, constitutes “typo-squatting,” which is itself evidence that Respondent lacks rights to and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests in a contested domain name where a respondent used the typo-squatted <wwwdewalt.com> domain name to divert Internet users to a search engine webpage, and failed to respond to a complaint filed under the Policy); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003): “Considering the nonsensical nature of the [<wwwmedline.com>] domain name and its similarity to Complainant’s registered and distinctive [MEDLINE] mark, the Panel concludes that Policy ¶ 4(c)(ii) does not apply to Respondent.”
Therefore, the Panel finds that Respondent lacks rights to and legitimate interests in the disputed domain name and that the requirements of Policy ¶ 4(a)(ii) have been satisfied.
Complainant asserts that Respondent’s use of the disputed domain name to divert Internet users seeking Complainant’s <americanairlines.com> website disrupts Complainant’s air travel and booking business by creating confusing similarity between Complainant’s AMERICAN AIRLINES mark and the disputed domain name. We agree. See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that a respondent engaged in bad faith registration and use of contested domain names pursuant to Policy ¶ 4(b)(iii) by using them to operate a commercial search engine with links to the products of a complainant and that complainant’s competitors, as well as by diverting Internet users to several other domain names); 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).
Moreover, as already noted, we may safely presume from the
circumstances here presented that Respondent is collecting click-through fees
for Internet users’ mistaken belief about whose website they are visiting. This is further evidence of bad faith
registration and use of the contested domain name under Policy ¶ 4(b)(iv). See T-Mobile
USA, Inc. v. utahhealth, FA
697821 (Nat. Arb. Forum June
7, 2006) (holding that the registration and use of a domain name confusingly
similar to a complainant’s mark to direct Internet traffic to a commercial
“links page” in order to profit from click-through fees or other revenue
sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Univ.
of
Respondent is using the disputed domain name
to operate a website which features links to competing and non-competing
commercial websites from which Respondent presumably receives referral fees.
Such use for Respondent’s own commercial gain is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iv).
We have previously found that Respondent is engaged in typo-squatting. This use of a disputed domain name constitutes independent evidence that Respondent has registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See, for example, Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that a respondent engaged in typo-squatting, which is evidence of bad faith registration and use of a domain name under Policy ¶ 4(a)(iii)); see also Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005):
Respondent's
registration of the domain names in dispute constitutes bad faith because the
domain names are merely typosquatted versions of the [complainant’s]…mark.
Therefore, the Panel finds that Respondent has registered and is using the disputed domain name in bad faith, and that the Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <wwwamericanairlanes.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 18, 2010
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