Continental Airlines, Inc. v. Purple Bucquet / Purple
Claim Number: FA1007001334508
Complainant is Continental
Airlines, Inc. (“Complainant”), represented by Michael C. Henning, of Continental Airlines, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwcontinentalair.com>, registered with POWER BRAND CENTER CORP.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 9, 2010.
On July 13, 2010, POWER BRAND CENTER CORP. confirmed by e-mail to the National Arbitration Forum that the <wwwcontinentalair.com> domain name is registered with POWER BRAND CENTER CORP. and that Respondent is the current registrant of the name. POWER BRAND CENTER CORP. has verified that Respondent is bound by the POWER BRAND CENTER CORP. 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 July 19, 2010, the Forum served
the Complaint and all Annexes, including a Written Notice of the Complaint,
setting a deadline of August 9, 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
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 18, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 "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:
1.
This Amended Complaint is based upon the name,
trademark, and service mark CONTINENTAL AIRLINES and a
family of related marks that Continental Airlines owns and uses in commerce in
connection with airline transportation services, which presently reach five
continents: North America, South America,
Europe, Asia, and
2. Continental Airlines’ issued United States registrations include (1) Registration No. 2,288,901 for the mark CONTINENTAL AIRLINES (registered Oct. 26, 1999); (2) Registration No. 1,993,534 for the mark CONTINENTAL (registered Aug. 13, 1996); and (3) Registration No. 1,963,372 for the mark CONTINENTAL & DESIGN (registered Mar. 19, 1996). Continental Airlines has been using the CONTINENTAL AIRLINES and CONTINENTAL names and marks since 1937 and continues to use these names and marks in connection with all of its businesses throughout the world. As a result of the widespread, long-term, continuous, and prominent use of these marks, the CONTINENTAL AIRLINES mark and variations thereof have acquired significant goodwill, wide public recognition, and fame as a means by which Continental Airlines and its goods and services are known to the public and their source and origin are identified.
FACTUAL AND LEGAL GROUNDS
A. The Disputed Domain Name Is
Identical Or Confusingly Similar To Continental Airlines’ Marks.
3. Continental Airlines has established rights in the CONTINENTAL AIRLINES mark and variations thereof under ICANN Policy Paragraph 4(a)(i) through registration of the marks with the United States Patent and Trademark Office and other trademark authorities. Continental Airlines Inc. v. Hui, FA 1117471 (Nat. Arb. Forum Jan. 15, 2008) (finding that Continental Airlines satisfied ICANN Policy Paragraph 4(a)(i) when the disputed domain name incorporated the CONTINENTAL AIRLINES mark); see also UnitedHealth Group Inc. v. Hassan, FA 0947081 (Nat. Arb. Forum May 17, 2007) (finding that the complainant had established rights in its marks for purposes of Policy Paragraph 4(a)(i) as a result of having several trademark registrations with the USPTO). Moreover, as the owner of the CONTINENTAL AIRLINES mark and its many variations, including CONTINENTAL and CONTINENTAL & DESIGN, Continental Airlines has invested a substantial amount of money in an effort to market its goods and services throughout the world without confusion.
4. Respondent’s wwwcontinentalair.com domain name is identical or confusingly similar to Continental Airlines’ CONTINENTAL AIRLINES and CONTINENTAL marks because it incorporates the dominant features of the marks along with (1) the inclusion of “www”, (2) the abbreviation of the term “airlines” to “air”, and (3) the addition of the generic top-level domain (“gTLD”) “.com”. “[T]he addition of ‘www’ . . . constitutes mere typosquatting,” which “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[.]” Continental Airlines Inc. v. Hui, FA 1117471 (Nat. Arb. Forum Jan. 15, 2008) (citation omitted); Continental Airlines, Inc. v. Li, FA 0290160 (Nat. Arb. Forum Aug. 9, 2004) (“A domain name that incorporates a well-known third party’s mark and that merely prefaces the mark with the letters ‘www’ has consistently been determined to be confusingly similar to such a mark under the Policy.”).
5. Moreover, the “[a]ddition of the descriptive word ‘air’ does not sufficiently distinguish the domain name from [Continental Airlines’] mark. The word ‘air’ describes [Continental Airlines’] business and its relation to the airline industry.” Continental Airlines, Inc. v. Jim, FA 1254675 (Nat. Arb. Forum May 18, 2009); Olympic Airlines v. MC&I Inc., FA 0649690 (Nat. Arb. Forum Apr. 14, 2006) (“The abbreviation of airlines to ‘air’ and the addition of the top-level domain ‘.com’ do not negate the confusingly similar aspects of Respondent’s domain name.”). Finally, “[i]t is well-established that the inclusion of a gTLD is irrelevant to a Policy ¶4(a)(i) analysis.” Harrah’s License Co. v. Laurent, FA 1119069 (Nat. Arb. Forum Jan. 15, 2008). As a result, the disputed domain name is identical to, or at a minimum confusingly similar to, Continental Airlines’ mark pursuant to Policy Paragraph 4(a)(i).
B. Respondent Has No Rights Or Legitimate Interests In The Disputed Domain Name.
6. Numerous factors show that Respondent lacks any rights to or legitimate interests in wwwcontinentalair.com. First, Continental Airlines has not granted any license, permission, or authorization to Purple Bucquet / Purple or to PrivacyProtect.org c/o Domain Admin (Respondent’s privacy-shielded name at the time Continental filed this action) for the use of the CONTINENTAL AIRLINES mark and family of marks for any purpose. Second, Continental Airlines is aware of no evidence, such as the WHOIS information supplied by Respondent for this domain name, showing that Respondent is operating a legitimate business under the wwwcontinentalair.com domain name or that it is commonly known by the disputed domain name. (providing no indication that Respondent is commonly known by wwwcontinentalair.com); see also Gilson, Inc. v. to attn. of Mapname.com customer 3, FA 1325774 (Nat. Arb. Forum July 6, 2010) (“The WHOIS information for the disputed domain name lists the registrant as ‘PrivacyProtect.org,’ which the Panel finds provides no evidence that Respondent is commonly known by the disputed domain name pursuant to Policy ¶4(c)(ii).”); Morningstar, Inc. v. Purple Bucquet c/o Purple, FA 1310402 (Nat. Arb. Forum Apr. 12, 2010) (“The WHOIS information for the <morningstsr.com> domain name lists ‘Purple Bucquet c/o Purple’ as the registrant, which indicates that Respondent is not commonly known by the disputed domain name.”).
7. Third, Respondent’s domain name resolves to a domain parking web site that directs Internet users to competitors of Continental Airlines, such as Southwest, US Airways, and JetBlue. Moreover, if a user clicks the “related search” link for “Continental Airlines”, the web site directs Internet users to, among others, <Expedia.com> and <BookingBuddy.com>, which are “sponsored listings” that compete with Continental Airlines’ continental.com web site for airline ticket sales. “Respondent’s use of the domain name to advertise competing goods and services is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).” Franklin Mint Fed. Credit Union v. Smith, FA 0860517 (Nat. Arb. Forum Feb. 20, 2007).
8. Fourth, Respondent has engaged in typosquatting by registering a domain name that omits the “.” after the “www” in an attempt to divert Internet users away from Continental Airlines’ web site. “Respondent’s use of typosquatting is itself evidence that Respondent lacks rights or legitimate interests pursuant to Policy ¶4(a)(ii).” Continental Airlines Inc. v. Hui, FA 1117471 (Nat. Arb. Forum Jan. 15, 2008). Given the above, it is clear that Respondent has no rights to or legitimate interests in the domain name wwwcontinentalair.com. See ICANN Policy ¶4(a)(ii).
C. The Disputed Domain Name Was Registered And Is Being Used In Bad Faith.
9.
Respondent’s initial use of PrivacyProtect.org,
a privacy service, to shield its registration information, use of Continental
Airlines’ marks, and use of the disputed domain name to offer links to
competing travel and airfare sites suggest that Respondent had actual knowledge
of Continental Airlines’ rights in its marks when Respondent registered the wwwcontinentalair.com
domain name. See Deutsche Lufthansa AG v.
Kudakwashe Musunga / PrivacyProtect.org, D2009-1754 (WIPO Feb. 12, 2010) (“As a further element evidencing the bad faith, the Panel
notes that there has been an attempt by Respondent to avoid submission to this
UDRP proceeding, apparently by means of a privacy service. The initial Respondent as per the Amended
Complaint submitted on December 22, 2009 was
“PrivacyProtect.org”, of the
10.
Moreover, given Continental Airlines’
1. Respondent
Is Preventing Continental From Reflecting Its Marks.
11. Respondent has been subject to at least six other UDRP proceedings where it was ordered to transfer domain names to the rightful trademark holders:
(1) Avid Dating Life, Inc. v. Purple Bucquet c/o Purple, FA 1318425 (Nat. Arb. Forum June 18, 2010) (ordering that <aschleymadison.com> and <ashkeymadison.com> be transferred and finding that Respondent Purple Bucquet c/o Purple had “engaged in a pattern of bad faith registration and use under the parameters of Policy ¶4(b)(ii)” because it had “been the respondent in other UDRP proceedings, wherein the disputed domain names were ordered to be transferred from Respondent to the respective complainants in those cases”);
(2) Charlotte Russe Merch., Inc. v. Purple Bucquet c/o Purple, FA 1319965 (Nat. Arb. Forum June 3, 2010) (ordering that <charelotterusse.com> and <charlottereusse.com> be transferred);
(3) Morningstar, Inc. v. Purple Bucquet c/o Purple, FA 1310402 (Nat. Arb. Forum Apr. 12, 2010) (ordering that <morningstsr.com> be transferred);
(4) Heartland Payment Sys. v. Purple Bucquet, D2010-0722 (WIPO June 22, 1010) (ordering that <heartlandpaymentssystems.com> be transferred);
(5) Starwood Hotels & Resorts Worldwide Inc. v. PrivacyProtect.org/Purple Bucquet, D2010-0525 (WIPO June 4, 2010) (ordering that <westinbonaventure.com> be transferred); and
(6) Chr. Hansen A/S v. Privacyprotect.org/Purple Bucquet, D2010-0382 (WIPO May 18, 2010) (ordering that <bb12.com> be transferred).
12. In addition, Respondent has registered <mycricketr.com>, which is a misspelling substantially identical to the <www.mycricket.com> domain name owned by Cricket Communications, a mobile phone company. Similar to the disputed domain name in this case, <mycricketr.com> resolves to a domain parking web site that contains links to mobile phone businesses that compete with Cricket Communications. Respondent’s repeated pattern of registering domain names, including wwwcontinentalair.com, to prevent the rightful owners from reflecting their marks constitutes bad faith registration and use. See ICANN Policy ¶4(b)(ii); National Abortion Fed’n v. Dom 4 Sale, Inc., FA 0170643 (Nat. Arb. Forum Sept. 9, 2003) (finding that such actions constitute bad faith registration and use under ICANN Policy Paragraph 4(b)(ii)).
2. Respondent
Registered The Disputed Domain Name
Primarily To Disrupt The Business Of Continental Airlines.
13. As noted above, Respondent’s wwwcontinentalair.com domain name resolves to a parked web site that offers links to Continental Airlines’ competitors. Respondent’s use of the disputed domain name in this manner is likely to tarnish and disparage the reputation and goodwill associated with the Continental Airlines marks and be dilutive of the marks, both by creating an unwanted association with the services offered for sale at the competing web site and by presenting services in a manner that is not commensurate with the presentation expected from Continental Airlines in regards to the CONTINENTAL AIRLINES mark and related marks. By registering and using a domain name containing Continental Airlines’ marks for the purpose of attracting and diverting Internet users to competing travel web sites, Respondent has disrupted Continental Airlines’ business and has engaged in bad faith registration and use under Policy Paragraph 4(b)(iii). See BB&T Corp. v. Walker, FA 1177130 (Nat. Arb. Forum May 14, 2008) (finding the respondent’s use of parked domain names, which linked to the complainant’s competitors, constituted disruption and bad faith registration and use pursuant to Policy Paragraph 4(b)(iii)); Continental Airlines, Inc. v. Jim, FA 1254675 (Nat. Arb. Forum May 18, 2009) (“Respondent’s use of Complainant’s CONTINENTAL mark in the <continentalair.com> domain name to direct Internet users to a website promoting other commercial websites that offer competing services constitutes bad faith pursuant to Policy ¶4(b)(iii).”).
3. Respondent Is Diverting Internet
Customers For Commercial Gain.
14. Respondent clearly intended to attract, for commercial gain, Internet users to Respondent’s web site by creating confusion with Continental Airlines’ marks. For example, the disputed domain name reverts to a parked web site that includes links to businesses that are closely related to Continental Airlines’ business. “That fact alone suggests that the Respondent deliberately sought to create confusion to divert Internet users looking for [Continental Airlines].” AT&T Knowledge Ventures, L.P. v. Briers, D2007-1245 (WIPO Oct. 26, 2007). Moreover, although Respondent’s web site contains links for “related searches” such as “Continental Airlines” and “Continal Airlines,” those links are not affiliated with Continental Airlines and do not resolve to continental.com.
15. In addition, Respondent presumably benefits commercially from the “Sponsored Listings” contained on the web site that consist of links to multiple third-party sites which offer discounted airfares in competition with Continental Airlines. see also Netbooks, Inc. v. F.B. (us), FA 1069929 (Nat. Arb. Forum Oct. 12, 2007) (“Obviously, the use of the term ‘Sponsored Links’ by Respondent at the top of the web site demonstrates that Respondent is receiving compensation for these click-through advertising links to third-party web sites.”). When a “Respondent’s resolved website displays sponsored listings of third-party links that are in competition with Complainant, at a confusingly similar domain name to Complainant’s mark, presumably for financial gain, . . . this use constitutes bad faith registration and use under Policy ¶4(b)(iv).” Blu Media Inc. v. Transure Enters. Ltd c/o Host Master, FA 1307892 (Nat. Arb. Forum Mar. 30, 2010); Continental Airlines, Inc. v. Jim, FA 1254675 (Nat. Arb. Forum May 18, 2009) (“Respondent registered and is using the <continentalair.com> domain name in bad faith pursuant to Policy ¶4(b)(iv), because Respondent is using Complainant’s CONTINENTAL mark to attract Internet users to a website that redirects them via commercial click-through links to websites of Complainant’s competitors.”).
16. Respondent is thus capitalizing on the likelihood that Internet users who are attempting to seek information about Continental Airlines’ products and services will be confused as to Continental Airlines’ affiliation with the disputed domain name. “The registration and use of a domain name containing Complainant’s mark primarily to capitalize on the goodwill associated with Complainant’s mark by attracting Complainant’s customers is evidence of bad faith registration and use[] under Policy ¶4(b)(iv).” Radisson Hotels Int’l, Inc. v. Stillekens, FA 0570293 (Nat. Arb. Forum Nov. 18, 2005); see also Continental Airlines Inc. v. Hui, FA 1117471 (Nat. Arb. Forum Jan. 15, 2008) (finding that a respondent’s attempt to “take advantage of common typing errors in its [<wwwcontinentalairlines.com>] domain name registration constitutes bad faith”).
B. Respondent failed to submit a Response in this proceeding.
Complainant, Continental Airlines, Inc., holds a trademark registration for its CONTINENTAL mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,993,534 issued August 13, 1996) in connection with airline transportation services over five continents.
Respondent, Purple Bucquet / Purple, registered the disputed domain name on November 8, 2001. The disputed domain name resolves to a parked website that directs Internet users to the websites of Complainant’s competitors in the airline industry.
Complainant alleges Respondent has been the respondent in at least six other UDRP proceedings which resulted in the disputed domain names in those cases being transferred to the respective complainants. See Avid Dating Life, Inc. v. Purple Bucquet c/o Purple, FA 1318425 (Nat. Arb. Forum June 18, 2010); see also Morningstar, Inc. v. Purple Bucquet c/o Purple, FA 1310402 (Nat. Arb. Forum Apr. 12, 2010).
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 asserts rights in its CONTINENTAL mark based on its registration of the same with the USPTO (Reg. No. 1,993,534 issued August 13, 1996). The Panel finds Complainant’s registration of its CONTINENTAL mark with the USPTO is sufficient evidence of Complainant’s rights in the mark pursuant to Policy ¶4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶4(a)(i).”); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Complainant claims Respondent’s <wwwcontinentalair.com>
domain name is confusingly similar
to Complainant’s CONTINENTAL mark.
Respondent’s disputed domain name adds the prefix “www” and the
descriptive term “air” which describes Complainant’s position in the airline
industry, along with the generic top-level domain (“gTLD”) “.com” to
Complainant’s CONTINENTAL mark. The
Panel finds the addition of the “www” prefix renders the disputed domain name
confusingly similar to Complainant’s mark.
See Register.com
Inc. v. House, FA 167970
(Nat. Arb. Forum Aug. 22, 2003) (finding the prefix “www”
followed by the trademark with no period separating them did not distinguish
the mark and was confusingly similar).
The Panel also finds the addition of a descriptive term renders the
disputed domain name confusingly similar to Complainant’s mark. See
Gillette Co. v. RFK Assocs.,
FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the
additions of the term “batteries,” which described the complainant’s products,
and the generic top-level domain “.com” were insufficient to distinguish the
respondent’s <duracellbatteries.com> from the complainant’s DURACELL
mark). Additionally, the Panel determines
the addition of a gTLD is irrelevant for the purposes of Policy ¶4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum
Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is
irrelevant to a Policy ¶4(a)(i) analysis). Therefore, the Panel finds Respondent’s <wwwcontinentalair.com>
domain name is confusingly similar
to Complainant’s CONTINENTAL mark pursuant to Policy ¶4(a)(i).
The Panel finds Complainant has satisfied Policy ¶4(a)(i).
Complainant claims Respondent does not have any rights or legitimate interests in the disputed domain name. The burden shifts to Respondent to prove it has rights or legitimate interests pursuant to Policy ¶4(a)(ii) after Complainant makes a prima facie case in support of its allegations. The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶4(c). See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”); 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 claims it has not granted any license, permission, or authorization to Respondent for the use of the CONTINENTAL mark for any purpose. Complainant argues the WHOIS information, which indicates the registrant of the disputed domain name is “Purple Bucquet / Purple,” does not indicate that Respondent operates a legitimate business under the disputed domain name or that it is commonly known by the disputed domain name. Based on Complainant’s arguments, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant claims Respondent’s <wwwcontinentalair.com> domain name resolves to a parked website featuring links to Complainant’s competitors in the airline industry. The Panel finds Respondent’s use of the confusingly similar disputed domain name to advertise and link Internet users to Complainant’s competitors is neither a bona fide offering of goods and services pursuant to Policy ¶4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (finding that the respondent was not using the <tesco-finance.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by maintaining a web page with misleading links to the complainant’s competitors in the financial services industry); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process).
The Panel finds Complainant has satisfied Policy ¶4(a)(ii).
Complainant claims Respondent has been the respondent in at
least six prior UDRP proceedings that resulted in the transfer of the disputed
domain names to the complainants in those respective cases. See
Avid Dating Life, Inc. v. Purple Bucquet
c/o Purple, FA 1318425 (Nat. Arb. Forum June 18, 2010); see also Morningstar, Inc. v. Purple Bucquet
c/o Purple, FA 1310402 (Nat. Arb. Forum Apr. 12, 2010). The Panel finds Respondent’s activities
constitute serial cybersquatting and is evidence of Respondent’s bad faith
registration and use pursuant to Policy ¶4(b)(ii). See Westcoast Contempo Fashions Ltd. v.
Complainant argues Respondent registered the disputed domain name with the primary purpose of disrupting Complainant’s business because Respondent’s disputed domain name resolves to a parked website that offers links to Complainant’s competitors in the airline industry. The Panel agrees, and finds that Internet users seeking information about Complainant may instead receive information on a competitor which may ultimately lead to Internet users purchasing services from a competitor rather than Complainant. The Panel further finds Respondent has demonstrated bad faith registration and use pursuant to Policy ¶4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
Complainant claims Respondent has clearly intended to attract, for commercial gain, Internet users to Respondent’s website by creating confusion with Complainant’s CONTINENTAL mark. Complainant further alleges, and the Panel presumes, Respondent benefits commercially from the links displayed on the resolving website and receives fees from them when they are clicked on by Internet users. The Panel finds Respondent’s receipt of click-through fees from the links displayed on the website resolving from the confusingly similar disputed domain name is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also 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)).
The Panel finds Complainant has satisfied Policy ¶4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwcontinentalair.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: August 21, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum