DECISION

 

Textron Innovations Inc. v. Jay Brunn / Brunn Enterprises, LLC

Claim Number: FA2406002102475

 

PARTIES

Complainant is Textron Innovations Inc. ("Complainant"), represented by Jeremiah A. Pastrick, Indiana, USA. Respondent is Jay Brunn / Brunn Enterprises, LLC ("Respondent"), Minnesota, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <cessnaferrypilot.com>, registered with GoDaddy.com, LLC.

 

PANEL

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.

 

Alan L. Limbury, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on June 17, 2024. Forum received payment on June 17, 2024.

 

On June 17, 2024, GoDaddy.com, LLC confirmed by e-mail to Forum that the <cessnaferrypilot.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 June 21, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 11, 2024 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@cessnaferrypilot.com. Also on June 21, 2024, 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.

 

A timely Response was received and determined to be complete on July 11, 2024.

 

On July 11, 2024, pursuant to the Parties' requests to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant, Textron Innovations Inc., is an affiliate of Textron Inc., one of the world's best-known multi-industry companies. Textron Inc.'s aviation business is run by Textron Aviation Inc.

 

Complainant owns the USPTO registered CESSNA word and logo trademarks which it licenses exclusively to Textron Aviation Inc. The Cessna brand is one of the most known private aircraft brands in the world.

 

To the best of Complainant's knowledge, Respondent appears to offer transport services for Cessna aircraft as well as instructor-supported flying hours. Respondent extensively utilizes the Cessna name, model numbers and imagery and the corresponding goodwill on its site in addition to its inappropriate use of the domain <cessnaferrypilot.com> to illegitimately divert web traffic to its site and capitalize upon the value of the Cessna name and brand.

 

Respondent directly competes with Complainant and/or offers "non-sanctioned" services which Complainant has explicitly elected not to provide. More specifically, customers who purchase Cessna aircraft directly from Complainant - whether new or pre-owned – travel to Complainant's headquarters in Witchita, Kansas to take possession of their aircraft and, in the process, are met with a purposefully-crafted buying experience. This would be akin to purchasing a Mercedes-Benz from an authorized dealer – and receiving the accompanying brand experience as part of that process – versus purchasing a Mercedes from a used car lot. Additionally, despite Complainant's "default" position that Cessna customers take possession of their aircraft in person at Cessna headquarters, Complainant will (and does) make exception to this policy on a case-by-case basis and, in those instances, Complainant will refer customers to known/trusted aircraft transport providers of which Respondent is not one.

 

The domain name <cessnaferrypilot.com> is confusingly similar/identical to Complainant's registered CESSNA marks.

 

Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known as "cessnaferrypilot". Additionally, Complainant's CESSNA marks are so well-known that the only plausible inference that can be derived from Respondent's registration of the disputed domain name is that Respondent registered it to take advantage of and intentionally trade on the goodwill associated with Complainant's marks. Additionally, Complainant has not licensed nor otherwise permitted any organization to utilize its CESSNA marks in connection with any goods or services similar to those offered by Respondent nor to own any domain names incorporating the CESSNA mark.

 

It is clear that Respondent has no legitimate rights in the domain name and that his purpose for registering the <cessnaferrypilot.com> domain name is likely to utilize the domain to divert traffic to its website, capitalize upon the confusion that consumers will likely have when navigating to this domain and unfairly profit from these illegitimate and unauthorized uses of the CESSNA mark in this domain.

 

B. Respondent

Respondent says he is a 66-year-old retired agent of a Federal law enforcement agency, who began his aviation career while employed by the agency. The agency is one of the biggest customers of Complainant and Respondent logged many hours of flying time in Cessna aircraft with the Bureau. Respondent is and always has been an admirer and promoter of Cessna as a brand and manufacturer of aircraft and would never seek to intentionally cause harm to Cessna Aircraft.

 

Respondent performs a function in the aviation community known as a "Ferry Pilot", a "term of art" used by owners and pilots of aircraft since the beginning of aviation. Typically, an aircraft owner will at times need to move the aircraft to another location, often many miles away from the home base. Often this function is performed after the sale of the aircraft to another party and owners will attempt to locate a suitable pilot to provide the ferry pilot service. Due to the high value of the aircraft involved, there will often be insurance requirements which specify a certain number of hours in the make, model and type of aircraft involved. Complainant admits it employs its own pilots to work with its new airplane customers. Complainant does not provide ferry pilot services in the used aircraft market, which is the business model of Respondent and many other commercial pilots.

 

Respondent acted in good faith. The Cessna logo mark does not appear on Respondent's website. The photographs used were freely available on the Internet. The models of Cessna aircraft listed on Respondent's website are common terms used to refer to Cessna aircraft.

 

Cessna is such a commonly used name in the aviation world that it would be ubiquitous, much in the way of  "Chevy" "Ford" and "Xerox". A search of the term "Cessna"  results in hundreds of returns from flight schools, aircraft maintenance facilities, parts distributors and others. Within many of these sites, unlike Respondent's, the Cessna trademarked logo appears to be used freely. So the argument that consumers would confuse Respondent's business seems disingenuous.

 

Complainant states "Additionally, Complainant has not licensed nor otherwise permitted any organization to utilize its Cessna marks in connection with any goods or services similar to those offered by Respondent nor to own any domain names incorporating the Cessna mark." (Emphasis added). This statement is false. There are several domains which incorporate the word Cessna. [cessnapilots.org, cessnapilotsassocitation.org, cessnaflighttraining.kingschools.com, cessnaflyer.org, among others]. These sites provide services to Cessna owners, in the aftermarket, such as maintaining aircraft, flight safety, ground instruction, techniques of cross country flying such as would be used in ferrying aircraft.

 

Complainant cites the case Metropolitan Washington Airports Authority v. Uniwebmart Inc., FA 1376118 (Forum Apr. 4, 2011), as strongly resembling the facts in this case. Respondent disagrees. In the cited case, the two businesses are similar and provide competing services. In the case at hand, Respondent is in no way in competition with Complainant.

 

Complainant states that "Respondent directly competes with Complainant and/or offers "non-sanctioned" services which Complainant has explicitly elected not to provide."  No example of this alleged "direct" competition, nor the non-sanctioned services is provided, so Respondent is at a disadvantage here. The argument is confusing and ambiguous. Complainant appears to allege that Respondent is providing services (aftermarket ferrying of aircraft), which Complainant has elected not to provide. Surely, Complainant is not asserting that any ferry flight or flight training provided by an instructor who advertises that they use Cessna aircraft, must be approved by Complainant. Also, based on knowledge and belief, and the review of the Cessna website, Complainant does not provide Ferry Pilot services, in other words you cannot call Cessna and hire Textron/Cessna to fly your used aircraft from point A to point B. There is no direct competition.

 

The <cessnaferrypilot.com>  domain name seeks to find customers who own a specific brand of aircraft who are looking to have their aircraft ferried. Respondent has many hours of experience in Cessna aircraft. The "ferrypilot" portion of the domain name differentiates Respondent's business from that of Complainant as "ferrypilot" clearly indicates to owners and pilots what the service would entail. Respondent does not compete in any form with Complainant, as Respondent does not manufacture or sell new aircraft, or parts, which Complainant has clearly stated in the Complaint as its business.

 

CESSNA, an ubiquitous name when added to "Ferry Pilot", would reasonably cause aviation consumers to believe Respondent to be providing pilot services.

 

FINDINGS

Complainant has failed to establish all the elements entitling it to relief.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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.

 

Identical and/or Confusingly Similar

Complainant has shown that it has rights in the CESSNA word and logo  marks through numerous registrations, including with the USPTO (e.g., CESSNA word mark, Reg. No. 867,435, registered on April 1, 1969 and CESSNA logo mark, Reg. No. 1,269,737, registered on March 13, 1984).

 

It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant's trademark and the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.7.

 

The Panel finds Respondent's <cessnaferrypilot.com> domain name to be confusingly similar to Complainant's marks, only differing from the word element of the marks by the addition of the words "ferry" and "pilot", which do not distinguish the domain name from the mark, and the inconsequential ".com" generic top-level domain ("gTLD"), which may be ignored. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.

 

Complainant has established this element.

 

Rights or Legitimate Interests and Registration and Use in Bad Faith

Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.

 

(i)         before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

 

(ii)         Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or

 

(iii)         Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.

 

The <cessnaferrypilot.com> domain name was registered on February 3, 2023, many years after Complainant has shown that its CESSNA marks had become famous worldwide. It resolves to a website featuring images of Cessna aircraft and stating, inter alia:

 

FERRY PILOT SERVICES

I specialize in nationwide ferrying of Cessna aircraft. From Cessna 172 through Cessna 206 airframes, I have over 2000 hours logged in Cessna 182/206 late model G1000 equipped aircraft, most flying for a U.S. Government agency. I carry non-owned aircraft/CFI insurance to cover most deductibles and have extensive flight hours logged to qualify under your policy.

 

The Panel notes from the Complaint that when Complainant makes exception to its policy that customers take possession of their aircraft in person at Cessna headquarters, Complainant will refer customers to known/trusted aircraft transport providers of which Respondent is not one. This indicates to the Panel that in such circumstances Complainant does not itself compete with Respondent in providing ferry pilot services.

 

Complainant contends that its CESSNA marks are so well-known that the only plausible inference that can be derived from Respondent's registration of the disputed domain name is that Respondent registered it to take advantage of and intentionally trade on the goodwill associated with Complainant's marks. Further, that Respondent's purpose for registering the <cessnaferrypilot.com> domain name is to divert traffic to his website, capitalize upon the confusion that consumers will likely have when navigating to this domain and unfairly profit from these illegitimate and unauthorized uses of the CESSNA mark in this domain.

 

The Panel is not so persuaded. It is clear to the Panel that Respondent registered the <cessnaferrypilot.com> domain name in order to communicate that he is a pilot whose services are the ferrying of Cessna aircraft, a bona fide offering of services which cannot be described without nominative fair use of the CESSNA word mark. The website does not display Complainant's CESSNA logo mark, which could imply approval by Complainant. Neither the domain name nor the website to which it resolves suggest sponsorship, affiliation or endorsement by or with Complainant and are unlikely to cause confusion amongst consumers.

 

Accordingly, Respondent has shown that before any notice to Respondent of the dispute, Respondent has used the domain name in connection with a bona fide offering of services pursuant to paragraph 4(c)(i) of the Policy. The Panel finds that Respondent has rights to and legitimate interests in the domain name and has registered and is using the domain name in good faith.

 

Complainant has failed to establish these elements.

 

DECISION

Complainant having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.

 

Accordingly, it is Ordered that the <cessnaferrypilot.com> domain name REMAIN WITH Respondent.

 

 

 

Alan L. Limbury, Panelist

Dated: July 14, 2024