Alaska Airlines v. Dotsan / R.S. Potdar / - / Bladimir Boyiko
Claim Number: FA1209001463344
Complainant is Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Dotsan / R.S. Potdar (“Respondent”), India and Russia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alaksaair.com>, <alaskaaair.com>, and <wwwalaskaair.com>, registered with eNom, Inc.
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.
John J. Upchuch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 19, 2012; the National Arbitration Forum received payment on September 19, 2012.
On September 19, 2012, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <alaksaair.com>, <alaskaaair.com>, and <wwwalaskaair.com> domain names are registered with eNom, Inc. and that Respondent is the current registrant of the names. eNom, Inc. has verified that Respondent is bound by the eNom, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 25, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 15, 2012 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@alaksaair.com, postmaster@alaskaaair.com, postmaster@wwwalaskaair.com. Also on September 25, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 October 22, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <alaksaair.com>, <alaskaaair.com>, and <wwwalaskaair.com> domain names are confusingly similar to Complainant’s ALASKA AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <alaksaair.com>, <alaskaaair.com>, and <wwwalaskaair.com> domain names.
3. Respondent registered or used the <alaksaair.com>, <alaskaaair.com>, and <wwwalaskaair.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
1. Complainant is an airline based in the Seattle suburb of SeaTac, Washington, U.S.
2. Complainant enjoys widespread consumer recognition and has spent millions of dollars in advertisement and promotion of its ALASKA AIRLINES mark on the Internet through its website located at <alaskaairlines.com>.
3. Complainant owns rights in the ALASKA AIRLINES mark by virtue of its trademark registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,561,416 registered October 17, 1989).
4. The disputed domain names are nearly identical and confusingly similar to Complainant’s mark as they differ by one or more of the following changes: the addition of one extra character, the removal of one character, one character which is incorrect, or two juxtaposed characters.
5. The disputed domain names are a classic example of typosquatting.
6. Respondent has not been commonly known by the disputed domain names as the WHOIS information identifies the registrant as “Dotsan / R.S. Potdar / - / Bladimir Boyiko.”
7. Respondent is not sponsored by or legitimately affiliated with Complainant in any way and Complainant has not given Respondent permission to use Complainant’s mark in a domain name.
8. Respondent is using some or all of the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Respondent’s business.
9. Respondent presumably receives pay-per-click fees from these linked websites.
10. Respondent is using some or all of the disputed domain names to redirect Internet users to a website operated by Complainant’s competitors, presumably in exchange for financial consideration.
11. Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
12. Respondent registered the disputed domain names no earlier than March 10, 2000.
13. Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith.
14. Respondent’s bad faith is further shown by the use of the disputed domain name in connection with generating revenue as a “click-through” website by using Complainant’s mark and providing links to the services and products offered by Complainant to take advantage of Complainant’s well known mark to achieve a wrongful competitive advantage and commercial gain.
15. Respondent has registered and uses the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to attract and mislead consumers for its own profit.
16. Respondent’s advertised pay-per-click links displayed on the resolving website promote products that compete with Complainant, diverting potential customers away from Complainant and disrupting Complainant’s business, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iii).
17. Respondent holds registrations of other domain names that appear to be straightforward examples of typosquatting. Although these names are not directly involved in this Complaint, they serve as further evidence of bad faith intent pursuant to Policy ¶ 4(b)(ii) on the part of Respondent.
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."
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.
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.”).
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant alleges that it owns rights in the ALASKA AIRLINES mark by virtue of its trademark registration with the USPTO (Reg. No. 1,561,416 registered October 17, 1989). The Panel agrees, and finds that a USPTO trademark registration is adequate evidence of a Complainant’s rights in the ALASKA AIRLINES mark for the purposes of Policy ¶ 4(a)(i). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
The Panel finds that Complainant has presented sufficient evidence that the disputed domain names are controlled by the same entity and thus shall proceed with the instant proceeding.
Complainant argues that the disputed domain names are nearly identical and confusingly similar to Complainant’s mark as they differ by one or more of the following changes: the addition of one extra character, the removal of one character, one character which is incorrect, or two juxtaposed characters. The Panel notes that Complainant’s description of the changes made to the mark in the disputed domain names is not entirely accurate. The Panel notes that all three of the disputed domain names remove the space from between the terms, delete the “lines” portion of the term “airlines,” and add the generic top-level domain (“gTLD”) “.com.” The Panel also notes that the <alaskaaair.com> inserts an additional letter “a” between the terms “alaska” and “air.” The Panel notes that the <alaksaair.com> domain name misspells “alaska” by transposing the letters “k” and “s.” The Panel notes that the <wwwalaskaair.com> domain names adds the letters “www” to the beginning of the domain name without the standard separating period. Despite Complainant’s inaccurate characterization of the changes made to the made in the disputed domain names, the Panel nevertheless finds that the above-described changes are insignificant. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (concluding that the <classicmetalroofing.com> domain name was confusingly similar to the complainant’s CLASSIC METAL ROOFS mark because changing the final term of the mark from “roofs” to “roofing” was a minor alteration and did not sufficiently distinguish the domain name from the mark); see also Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)); see also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also 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 accordingly concludes that Respondent’s <alaskaaair.com>, <alaksaair.com>, and <wwwalaskaair.com> domain names are confusingly similar to Complainant’s ALASKA AIRLINES mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant asserts that Respondent has not been commonly known by the disputed domain names as the WHOIS information identifies the registrant as “Dotsan / R.S. Potdar / - / Bladimir Boyiko.” Complainant also argues Respondent is not sponsored by or legitimately affiliated with Complainant in any way, and Complainant has not given Respondent permission to use Complainant’s mark in a domain name. Based on these allegations and the evidence in the record, the Panel determines that Respondent is not commonly known by the disputed domain names and thus lacks rights and legitimate interests 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).
Complainant contends both that Respondent’s disputed domain names resolve to websites featuring generic pay-per-click links to third-party websites and that the disputed domain names resolve to websites operated by Complainant’s competitors. According to the screenshots submitted by Complainant, the Panel notes that Complainant’s first allegation about websites hosting a variety of pay-per-click links seems to be correct. The Panel notes that the screenshots display links with titles like “Alaska Airline Tickets,” “Flight Deals from Chicago,” and “Southwest – Official Site,” among others. Complainant asserts that Respondent presumably earns pay-per-click fees from these linked websites and that Respondent’s use of the disputed domain names in this manner creates confusion among consumers and tarnishes Complainant’s mark. The Panel holds that operating a pay-per-click website at the disputed domain names is not consistent with either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) as it is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be 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 pursuant to Policy ¶ 4(c)(iii)).
Complainant contends that Respondent holds registrations of other domain names that appear to be straightforward examples of typosquatting. Complainant argues that although those names are not directly involved in this Complaint, they serve as further evidence of bad faith intent on the part of Respondent. Complainant submits Exhibit O as evidence of these other domain names, including the following: <wwwoverstock.com>, <wwwdollar.com>, and <roccawear.com>. As these domain names have not yet been analyzed in a UDRP proceeding, the Panel declines to make a finding of bad faith on this evidence alone. Nevertheless, based on the three infringing domain names involved in the current proceeding, the Panel determines that Respondent has shown a pattern of bad faith domain name registration and use according to Policy ¶ 4(b)(ii). See Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)).
Complainant alleges that Respondent’s resolving websites at the disputed domain names advertise pay-per-click links that promote products that compete with Complainant. Complainant states that these links divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business. The Panel holds that Respondent’s efforts to facilitate competition with Complainant disrupts Complainant’s business and indicates bad faith registration and use under 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)).
Complainant argues that Respondent’s setting up of a “click-through” websites for which Respondent likely receives revenue for each misdirected Internet user obviously demonstrates Respondent’s bad faith. Complainant contends that Respondent has registered and used the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to attract and mislead consumers for its own profit. Complainant asserts that Respondent registered the disputed domain names containing Complainant’s mark to take advantage of Complainant’s well-known mark to achieve a wrongful competitive advantage and commercial gain. The Panel agrees with Complainant and concludes that Respondent’s registration and use of the disputed domain names reveals bad faith pursuant to Policy ¶ 4(b)(iv). See 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).
Complainant also alleges that Respondent’s registration of the disputed domain names constitutes typosquatting as they are designed to take advantage of Internet users’ typographical errors. The Panel notes, however, that the changes made to the ALASKA AIRLINES mark in the disputed domain names are more than simply typographical errors as an entire portion of Complainant’s mark, “lines,” is omitted in the disputed domain names. The Panel therefore declines to find bad faith under Policy ¶ 4(a)(iii) resulting from typosquatting.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alaksaair.com>, <alaskaaair.com>, and <wwwalaskaair.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: November 2, 2012
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