America West Airlines v. Amjad Kausar
Claim Number: FA0311000208575
Complainant is America West Airlines (“Complainant”)
represented by Christy Hubbard of Lewis and Roca LLP,
40 N. Central Avenue, Phoenix, AZ 85004. Respondent is Amjad Kausar, P.O. Box
5706, Karachi, Pakistan 74000 (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <wwwamericawest.com> registered with Enom,
Inc.
The
undersigned certifies that she has acted independently and impartially and that
to the best of her knowledge she has no known conflict in serving as Panelist
in this proceeding.
Hon.
Carolyn Marks Johnson sits as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically November 3, 2003; the Forum received a hard copy of the
Complaint November 6, 2003.
On
November 12, 2003, Enom, Inc. confirmed by e-mail to the Forum that the domain
name <wwwamericawest.com> is registered with Enom, Inc. and that
Respondent is the current registrant of the name. Enom, Inc. verified that
Respondent is bound by the Enom, Inc. 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
November 12, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of December 2, 2003, 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@wwwamericawest.com by
e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
December 10, 2003, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks
Johnson as Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the Forum 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."
Therefore, the Panel may issue its decision based on the documents
submitted and in accordance with the ICANN Policy, ICANN Rules, the 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. The domain name registered by Respondent,
<wwwamericawest.com>, is confusingly similar to Complainant’s
AMERICA WEST mark.
2. Respondent has no rights to or legitimate
interests in the <wwwamericawest.com> domain name.
3. Respondent registered and used the <wwwamericawest.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Since 1983, Complainant
has offered air transportation services under its marks. Complainant produced
extrinsic evidence in this proceeding that Complainant owns a number of
trademark registrations with the United States Patent and Trademark Office
(“USPTO”) for the AMERICA WEST mark, including Reg. No. 1,445,610 (registered
on June 30, 1987) related to air passenger, package, correspondence and cargo
transportation services.
Respondent
registered the <wwwamericawest.com> domain name September 27,
2000. Respondent is using the disputed domain name to redirect Internet traffic
to websites that sell gambling and travel services.
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 will draw such
inferences as the Panel considers appropriate pursuant to paragraph 14(b) of
the Rules.
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
demonstrated by extrinsic proof in this proceeding that it has rights in the
AMERICA WEST mark through trademark registration with the USPTO and by use in
commerce.
Complainant
contends that the domain name registered by Respondent, <wwwamericawest.com>,
is confusingly similar to Complainant’s AMERICA WEST mark because the disputed
domain name incorporates the entire mark and merely adds the letters “www” to
the beginning of the mark. Addition of these letters does not significantly
distinguish the domain name pursuant to Policy ¶ 4(a)(i) because the <wwwamericawest.com>
domain name capitalizes on a common Internet-user typographical error: omission
of the period before the second-level domain. See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1,
2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is
confusingly similar to Complainant’s registered trademark BANK OF AMERICA
because it “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”); see also Dana Corp. v. $$$ This Domain Name Is For Sale $$$,
FA 117328 (Nat. Arb. Forum Nov. 19, 2002) (finding Respondent's
<wwwdana.com> domain name confusingly similar to Complainant's registered
DANA mark because Complainant's mark remains the dominant feature).
The Panel finds
that Complainant has established Policy ¶ 4(a)(i).
Respondent
failed to submit a Response in this proceeding. Therefore, the Panel accepts
all reasonable allegations and inferences in the Complaint as true. See
Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat.
Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows
all reasonable inferences of fact in the allegations of Complainant to be
deemed true); see also Desotec
N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that
failing to respond allows a presumption that Complainant’s allegations are true
unless clearly contradicted by the evidence).
Furthermore,
based on Respondent’s failure to respond, the Panel presumes Respondent lacks
all rights to and legitimate interests in the disputed domain name under Policy
¶ 4(a)(ii). See Pavillion Agency,
Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding
that Respondents’ failure to respond can be construed as an admission that they
have no legitimate interest in the domain names); see also Canadian Imperial Bank of Commerce v. D3M
Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no
rights or legitimate interests where no such right or interest was immediately
apparent to the Panel and Respondent did not come forward to suggest any right
or interest it may have possessed).
Respondent is
using the <wwwamericawest.com> domain name to redirect Internet
traffic to websites that sell gambling and travel services. Respondent’s use
does not constitute 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). See Imation Corp. v. Streut, FA 125759 (Nat. Arb. Forum Nov.
8, 2002) (finding no rights or legitimate interest where Respondent used the
disputed domain name to redirect Internet users to an online casino); see
also Oly Holigan, L.P. v. Private,
FA 95940 (Nat. Arb. Forum Dec. 4, 2000) (finding no rights or legitimate
interest in a misspelled domain name as Respondent was merely using it to
redirect Internet users to, inter alia, an online casino); see also
Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11,
2002) (finding that Respondent’s use of the disputed domain name to redirect
Internet users to a financial services website, which competed with
Complainant, was not a bona fide offering of goods or services).
Moreover,
Respondent provided no evidence and nothing in the record suggests that
Respondent is commonly known by WWW AMERICA WEST or by the domain name <wwwamericawest.com>.
Thus, the Panel finds that Respondent failed to demonstrate any rights to or
legitimate interersts in the disputed domain name in accord with Policy ¶
4(c)(ii). See Gallup Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that
Respondent does not have rights in a domain name when Respondent is not known
by the mark); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum
May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that
one has been commonly known by the domain name prior to registration of the
domain name to prevail").
Accordingly, the
Panel finds that Complainant has established Policy ¶ 4(a)(ii).
Respondent’s use
of a domain name confusingly similar to Complainant’s AMERICA WEST mark to
offer gambling and travel services for sale establishes that Respondent
registered and used the <wwwamericawest.com> domain name in bad
faith in an attempt to attract Internet users to Respondent’s websites for
commercial gain by creating a likelihood of confusion with Complainant’s mark. See
Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if
Respondent profits from its diversionary use of Complainant's mark when the
domain name resolves to commercial websites and Respondent fails to contest the
Complaint, it may be concluded that Respondent is using the domain name in bad
faith pursuant to Policy ¶ 4(b)(iv)); see also State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum
Sept. 12, 2000) (finding bad faith where Respondent registered the domain name
<bigtex.net> to infringe on Complainant’s goodwill and attract Internet users
to Respondent’s website).
Moreover, by
registering a domain name that capitalizes on Internet-user error to redirect
users to Respondent’s commercial websites, Respondent is engaging in a practice
called “typosquatting.” Typosquatting itself demonstrates registration and use
of a domain name in bad faith under Policy ¶ 4(a)(iii). See Black &
Decker Corp. v. Khan, FA 137223
(Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name
was registered to “ensnare those individuals who forget to type the period
after the ‘www’ portion of [a] web-address,” evidence that the domain name was
registered and used in bad faith); see also Medline, Inc.
v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“in typosquatting cases, such as this one, it would be difficult for
Respondent to prove to the Panel that it did not have actual knowledge of
Complainant’s distinctive MEDLINE mark when it registered the infringing
<wwwmedline.com> domain name”).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <wwwamericawest.com> domain name be TRANSFERRED
from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: December 22, 2003
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