Southwest Airlines Co. v. Vision Soft / VisionSoft
Claim Number: FA2301002029095
Complainant is Southwest Airlines Co. (“Complainant”), represented by Tara K. Hawkes of Holland & Hart LLP, Colorado, USA. Respondent is Vision Soft / VisionSoft (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <careerssouthwestairline.com> (“Domain Name”), registered with OwnRegistrar, Inc..
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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to Forum electronically on January 25, 2023; Forum received payment on January 25, 2023.
On January 27, 2023, OwnRegistrar, Inc. confirmed by e-mail to Forum that the <careerssouthwestairline.com> domain name is registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the name. OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, 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 February 1, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 21, 2023 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@careerssouthwestairline.com. Also on February 1, 2023, 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On February 27, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
Complainant, Southwest Airlines Co., offers commercial airline services. Complainant asserts rights in the SOUTHWEST AIRLINES mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., reg. no. 1,738,670, registered December 8, 1992) and other international trademark authorities. Respondent’s <careerssouthwestairline.com> domain name is confusingly similar to Complainant’s mark because it contains the SOUTHWEST AIRLINES mark without the final “S”, merely adding the term “CAREERS” and the generic top-level domain name (“gTLD”) “.com” to form the Domain Name.
Respondent does not have rights or legitimate interests in the <careerssouthwestairline.com> domain name. Respondent is not licensed or authorized to use Complainant’s SOUTHWEST AIRLINES mark and is not commonly known by the Domain Name. Additionally, Respondent does not use the Domain Name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent previously used the Domain Name to pass off as Complainant in furtherance of a phishing scam.
Respondent registered and uses the <careerssouthwestairline.com> domain name in bad faith. Respondent previously used the Domain Name to pass off as Complainant in furtherance of a phishing scam. Respondent currently fails to make active use of the Domain Name. Finally, Respondent registered the Domain Name with actual knowledge of Complainant’s rights in the SOUTHWEST AIRLINES mark.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. Rather on February 2, 2023, Respondent sent the following e-mail to Forum:
“Trust this message meets all well. Prior to the complaints, it was a contracted job from a client, who gave us hosting name to use. To my understanding , the site was meant to serve different purpose outside your industry, and the site was not completed, just within 3 days of uploading the scripts to work on it base on clients request, you took it down (You can confirm from the time of host from time of suspension) which was a concern.
As it is, I have no interest to have any issue on this, than to let the domain name go and any associates with the site or idea terminated. Kindly see this as my intentions are professional and wish to let the domain go.”
In certain cases where the Respondent has clearly consented to the transfer of the Domain Name to the Complainant, the Panel is authorized to forgo traditional UDRP analysis. In the present case, while Respondent is clearly seeking a resolution of the proceeding, it is not clear whether they are prepared to consent to the transfer of the Domain Name to the Complainant and as such it is not appropriate to issue an order for relief without being satisfied that the elements of the UDRP are satisfied.
Complainant holds trademark rights for the SOUTHWEST AIRLINES mark. The Domain Name is confusingly similar to Complainant’s SOUTHWEST AIRLINES mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used the Domain Name 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."
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the SOUTHWEST AIRLINES mark through its registration with the USPTO (e.g., reg. no. 1,738,670, registered December 8, 1992). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
The Panel finds that the <careerssouthwestairline.com> domain name is confusing similar to Complainant’s SOUTHWEST AIRLINES mark as it consists of a minor misspelling of the SOUTHWEST AIRLINES mark (the removal of the final “s”) with the addition of the descriptive term “careers” and the “.com” generic top-level domain (“gTLD”). Addition of a generic or descriptive term and a gTLD does not sufficiently distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i)”). Neither does the purposeful misspelling of a mark distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Morgan Stanley v. Domain Admin / Whois Privacy Corp., FA 1783121 (Forum June 1, 2018) (“Respondent’s <morganstanle.com> domain name is confusingly similar to Complainant’s MORGAN STANLEY mark as it wholly incorporates the mark, but for the omission of the letter ‘y’ and spacing within the mark, and appends the ‘.com’ gTLD.”); see also OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015 (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’ … ”)
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name 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 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (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.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the SOUTHWEST AIRLINES mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “Vision Soft / VisionSoft” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
The Domain Name is presently inactive which by itself does not show a bona fide offering of goods and services. Complainant alleges, and provides evidence supporting its allegations, that prior to the commencement of the proceeding the Domain Name was used to create a website that mimicked an official website maintained by the Complainant, reproducing the SOUTHWEST mark, device and overall design. The website purported to be an official staffing website of the Complainant and invited visitors interested in employment with Complainant to provide personal information to purportedly apply for jobs with Complainant. Such conduct is best characterized as “phishing”. Respondent’s use of the Domain Name to impersonate Complainant for the purpose of engaging in a phishing scheme to acquire personal information is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Caterpillar Inc. v. ruth weinstein, FA 1770352 (Forum Mar. 7, 2018) (“Use of a disputed domain name in an attempt to pass itself off as a complainant and to conduct a phishing scheme is indicative of a failure to use said domain name in connection with a bona fide offer of goods and services per Policy ¶ 4(c)(i) or a legitimate noncommercial or otherwise fair use per Policy ¶ 4(c)(iii).”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that at the time Respondent registered the Domain Name, November 20, 2022, Respondent had actual knowledge of Complainant’s SOUTHWEST AIRLINES mark. It would be implausible for an entity to register a domain name almost identical to Complainant’s SOUTHWEST AIRLINES mark and purport to operate a recruiting and staffing page for Complainant unaware of the existence of the Complainant. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Name in bad faith as Respondent uses or has used the Domain Name to impersonate Complainant in furtherance of a phishing scheme. Use of a disputed domain name to impersonate a complainant in furtherance of a phishing scheme is evidence of bad faith per Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). Accordingly, the Panel finds that Respondent registered and uses the Domain Name in bad faith pursuant to Policy ¶ 4(b)(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 <careerssouthwestairline.com> domain name be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: February 27, 2023
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