Continental Airlines, Inc. v. Yong Li
Claim
Number: FA0406000290160
Complainant is Continental Airlines, Inc. (“Complainant”),
represented by W. Scott Brown, of Vinson & Elkins, L.L.P.,
2300 First City Tower, 1001 Fannin Street, Houston, TX 77002-6760. Respondent is Yong Li (“Respondent”), P.O. Box 904, Beijing, 100029, China.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <wwwcontinental.com>, registered with Iholdings.com,
Inc. d/b/a Dotregistrar.com.
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.
The
Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on June 25, 2004; the Forum received a hard copy of the
Complaint on June 28, 2004.
On
July 1, 2004, Iholdings.com, Inc. d/b/a Dotregistrar.com confirmed by e-mail to
the Forum that the domain name <wwwcontinental.com> is registered
with Iholdings.com, Inc. d/b/a Dotregistrar.com and that Respondent is the
current registrant of the name. Iholdings.com, Inc. d/b/a Dotregistrar.com has
verified that Respondent is bound by the Iholdings.com, Inc. d/b/a
Dotregistrar.com 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 2, 2004, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 22, 2004 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@wwwcontinental.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
July 28, 2004, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the Forum appointed the Honorable Charles K. McCotter,
Jr. (Ret.) as Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the 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."
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. Respondent’s <wwwcontinental.com>
domain name is confusingly similar to Complainant’s CONTINENTAL mark.
2. Respondent does not have any rights or
legitimate interests in the <wwwcontinental.com> domain name.
3. Respondent registered and used the <wwwcontinental.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant is
the fifth largest United States airline service provider and has enplaned
approximately 51 million passengers in 2003.
In connection with its services, Complainant has used the CONTINENTAL
mark for air transportation of persons and property since as early as July 1,
1937. On August 13, 1996, Complainant
registered the CONTINENTAL mark with the United States Patent and Trademark
Office (Reg. No. 1,993,534) to identify the foregoing services. In addition, Complainant maintains an
Internet presence at the domain name <continental.com>.
Respondent
registered the disputed domain name <wwwcontinental.com> on May
29, 2002. The disputed domain name
resolves to a directory for discount airlines, inter alia, located at a
subdirectory of the <usseek.com> second-level domain. In addition, the disputed domain name resolves
to the <vipfares.com> domain name, which is an internet-based travel
agency that advertises various travel destinations and offers users the
opportunity to book flights on various airlines.
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.
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.
The registration
of a mark with an appropriate government authority is sufficient under the
Policy to demonstrate rights in a mark.
Complainant registered the CONTINENTAL mark with the United States
Patent and Trademark Office on August 13, 1996. Therefore, Complainant has sufficiently demonstrated rights to
the CONTINENTAL mark under the Policy. See
Innomed Techs., Inc. v. DRP Servs., FA
221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's
rights in the mark.”); see
also Am. Online, Inc. v. Thomas P.
Culver Enters.,
D2001-0564 (WIPO June 18, 2001) (finding that successful trademark registration
with the United States Patent and Trademark Office creates a presumption of
rights in a mark); see also Vivendi
Universal Games v. XBNetVentures Inc., FA
198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's
federal trademark registrations establish Complainant's rights in the BLIZZARD
mark.”).
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.
In the instant case, the disputed domain name incorporates Complainant’s
CONTINENTAL mark in its entirety. The
letters “www” merely preface Complainant’s mark. It is apparent that Respondent registered a typosquatted version
of Complainant’s CONTINENTAL mark and thus the disputed domain name <wwwcontinental.com>
is confusingly similar to the mark pursuant to Policy ¶ 4(a)(i). 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 Marie Claire Album v. Geoffrey Blakely, D2002-1015
(WIPO Dec. 23, 2002) (holding that the letters "www" are not distinct
in the "Internet world" and thus Respondent 's
<wwwmarieclaire.com> domain name is confusingly similar to Complainant's
MARIE CLAIRE trademark); see also Neiman Marcus Group, Inc. v. S1A, FA
128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been
established because the prefix "www" does not sufficiently
differentiate the <wwwneimanmarcus.com> domain name from Complainant's
NEIMAN-MARCUS mark); see also Dana Corporation 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).
Complainant has
established Policy ¶ 4(a)(i).
Respondent has
not responded to the Complaint. As the
learned panel stated in Honeywell Int’l Inc. v. Domain Deluxe:
The
failure of Respondent to respond to the Complaint functions both as an implicit
admission that Respondent lacks rights to and legitimate interests in the
domain names, as well as a presumption that Complainant’s reasonable
allegations are true. FA 269166 (Nat. Arb. Forum June 29, 2004).
The Panel
follows this reasonable characterization in the instant case. 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 Bloomberg L.P. v. GAF, FA 190614
(Nat. Arb. Forum Oct. 20, 2003) (finding that since Respondent did not come
forward to explain what legitimate use it may have had in the domain names, the
panel could “presume that
Respondent lacks rights and legitimate interests in the domain names at
issue”); see also Allergan Inc. v. MedBotox Inc., FA
170639 (Nat. Arb. Forum Sept. 9, 2003) (“Respondent has not challenged the allegations in the Complaint.
Under these circumstances it is appropriate for the Panel to accept all
reasonable allegations and inferences in the Complaint as true.”).
Typosquatting is
a tactic employed by shrewd domain name registrants for the purpose of
exploiting Internet users who may, by happenstance, forget to type the period
that typically separates the second-level domain from the standard abbreviation
for the World Wide Web, i.e. “www.”
According to at least one panel, typosquatting is evidence, in and of
itself, that a respondent lacks rights and legitimate interests in a domain
name. See Diners Club Int’l Ltd. v.
Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum
June 23, 2003) (holding that Respondent’s <wwwdinersclub.com> domain
name, a typosquatted version of Complainant’s DINERS CLUB mark, was evidence in
and of itself that Respondent lacks rights or legitimate interests in the
disputed domain name vis á vis Complainant).
In the instant case, the Panel finds that the typosquatted domain name
has not evidenced 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 Nat’l Ass’n of Prof’l
Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003)
(“Typosquatting, as a means of redirecting consumers against their will to
another site, does not qualify as a bona fide offering of goods or services,
whatever may be the goods or services offered at that site.”).
There is simply
no evidence in the record that Respondent is known by the incoherent name
“wwwcontinental.com.” Therefore, the
Panel finds that Respondent is not commonly known by the disputed domain name
pursuant to Policy ¶ 4(c)(ii). See Tercent Inc.
v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (finding that the WHOIS
information, and its failure to imply that Respondent is commonly known by the
disputed domain name, is a factor in determining that Policy ¶ 4(c)(ii) does
not apply); see also 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").
Complainant has
established Policy ¶ 4(a)(ii).
Typosquatting
has been found numerous times to be evidence of bad faith, primarily because of
the inherent deceit associated with such a tactic. Therefore, the Panel finds that Respondent’s registration of the
disputed domain name <wwwcontinental.com> was performed in bad
faith pursuant to Policy ¶ 4(a)(iii). See
Nat’l Ass’n of Prof’l Baseball Leagues
v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the
intentional misspelling of words with intent to intercept and siphon off
traffic from its intended destination, by preying on Internauts who make common
typing errors. Typosquatting is
inherently parasitic and of itself evidence of bad faith”); see also
Canadian Tire Corp., Ltd. v. domain adm’r no.valid.email@worldnic.net
1111111111, D2003-0232 (WIPO May 22, 2003) (holding that an “absence of a
dot between the ‘www’ and ‘canadiantire.com’ [in the
<wwwcanadiantire.com> domain name is] likely to confuse Internet users,
encourage them to access Respondent’s site” and evidenced bad faith
registration and use of the domain name); see also Medline, Inc.
v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“[I]n 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”).
Furthermore, Respondent has used the typosquatted domain name to redirect
Internet users to websites that relate to Complainant’s airline industry. One
such website, located at the <vipfares.com>
domain name, advertises various travel destinations and offers users the
opportunity to book flights on various airlines, presumably including
competitors of Complainant. Using a
domain name, which is identical or confusingly similar to a complainant’s mark,
to offer goods or services that compete with those offered under a mark owned
by a complainant has been found to evidence bad faith pursuant to both Policy
¶¶ 4(b)(iii) and (iv). Yet, the Panel
declines to base its decision on Policy ¶ 4(b)(iii) due to both the minimal
evidence provided as to the nature of Respondent’s business and to the sufficiency
in grounding its findings on Policy ¶ 4(b)(iv). Indeed, the Panel finds that Respondent has intentionally
attempted to attract Internet users to its websites for commercial gain by
creating a likelihood of confusion with Complainant’s CONTINENTAL mark, which
is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Scholastic
Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 15, 2001)
(finding bad faith under Policy ¶ 4(b)(iv) where Respondent initially used the
domain name at issue to resolve to a website offering similar services as
Complainant into the same market); see also Computerized Sec. Sys., Inc. v.
Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that Respondent’s
use of the <saflock.com> domain name to offer goods competing with
Complainant’s illustrates Respondent’s bad faith registration and use of the
domain name, pursuant to Policy ¶ 4(b)(iv)); see also TM Acquisition Corp. v. Carroll, FA
97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where Respondent used
the domain name, for commercial gain, to intentionally attract users to a
direct competitor of Complainant).
Complainant has
established 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 <wwwcontinental.com> domain name be TRANSFERRED
from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr.
(Ret.), Panelist
Dated:
August 9, 2004
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