Delta Corporate Identity, Inc. and Delta Air Lines, Inc. v. WWW Enterprise, Inc.
Claim Number: FA0510000570132
Complainants are Delta Corporate Identity, Inc. and Delta Air Lines, Inc. (collectively, “Complainant”), represented by Ryan M. Kaatz, of Ladas & Parry, Digital Brands Practice, 224 South Michigan Avenue, Chicago, IL, 60604. Respondent is WWW Enterprise, Inc. (“Respondent”), P.O. Box 118, 5850 W. 3rd Street, Los Angeles CA 90036.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain name at issue are <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org>, registered with OnlineNIC, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 30, 2005; the National Arbitration Forum received a hard copy of the Complaint on October 7, 2005.
On October 7, 2005 and October 8, 2005, OnlineNIC, Inc. confirmed by e-mail to the National Arbitration Forum that the <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain names are registered with OnlineNIC, Inc. and that Respondent is the current registrant of the names. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, 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 October 12, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 1, 2005 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@wwwdelta.net, postmaster@wwwdelta.org, postmaster@wwwdeltaairlines.net, postmaster@deltaairlinescom.net, and postmaster@flysong.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 8, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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." 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 <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain names are confusingly similar to Complainant’s DELTA and SONG marks.
2. Respondent does not have any rights or legitimate interests in the <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain name.
3. Respondent registered and used the <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, collectively Delta Corporate Identity, Inc. and Delta Air Lines, Inc., is known as a leader in air transportation services for persons, property, and mail. Delta’s services extend to the provision of arena facilities for exhibitions, education and training in flight instruction and aviation science, tracking and monitoring of baggage, cargo, mail, freight, package shipments and aircraft parts, in-flight entertainment services and vacation-planning services. Delta holds the DELTA AIR LINES, DELTA, and SONG marks, registered with the U.S. Patent and Trademark Office (“USPTO”) on April 4, 1950 (Reg. No. 523,611), November 19, 1957 (Reg. No. 654,915), and February 3, 2004 (Reg. No. 2,881,872), respectively.
Respondent, WWW Enterprise, Inc., registered the <wwwdelta.net> and <wwwdelta.org> domain names on December 11, 2004, the <wwwdeltaairlines.net> and <deltaairlinescom.net> domain names on January 14, 2005, and the <flysong.org> domain name on April 1, 2005. All of the disputed domain names refer to a categorized list of links, including categories of “travel,” “services,” “money savers,” “leisure,” and “gambling.”
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. 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.”).
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 has offered its registrations of the DELTA AIR LINES, DELTA, and SONG marks as evidence of its rights in the respective marks. The Panel accepts this evidence as establishing Complainant’s rights in the DELTA AIR LINES, DELTA, and SONG marks pursuant to Policy ¶ 4(a)(i). 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.”); 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.”).
The Panel finds that the <wwwdelta.net>
and <wwwdelta.org> domain names are confusingly similar to
Complainant’s DELTA mark. The only
difference is the addition of “www” and either the “.net” or “.org” top-level
domain, which does not significantly distinguish the domain names from the
mark. See 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 the
complainant's NEIMAN-MARCUS mark); Rollerblade, Inc. v. McCrady,
D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such
as “.net” or “.com” does not affect the domain name for the purpose of
determining whether it is identical or confusingly similar).
The Panel finds that the <wwwdeltaairlines.net> and <deltaairlinescom.net> domain names are confusingly
similar to Complainant’s DELTA AIRLINES mark.
The only difference is the addition of “www” or “com” and the “.net”
top-level domain, which does not significantly distinguish the domain names
from the mark. See Dana
Corp. v. $$$ This Domain Name Is For Sale $$$, FA 117328 (Nat. Arb. Forum
Nov. 19, 2002) (finding the respondent's <wwwdana.com> domain name
confusingly similar to the complainant's registered DANA mark because the
complainant's mark remains the dominant feature); Pfizer, Inc. v. Suger,
D2002-0187 (WIPO Apr. 24, 2002) (finding that because the subject domain name
incorporates the VIAGRA mark in its entirety, and deviates only by the addition
of the word “bomb,” the domain name is rendered confusingly similar to the
complainant’s mark); Daedong-USA, Inc.
v. O’Bryan Implement Sales, FA 210302 (Nat. Arb. Forum Dec. 29,
2003) (“Respondent's domain name, <kioti.com>, is identical to
Complainant's KIOTI mark because adding a top-level domain name is irrelevant
for purposes of Policy ¶ 4(a)(i).”).
The Panel finds that
the <flysong.org> domain name is confusingly similar to
Complainant’s SONG mark. The only
difference is the addition of the word “fly,” which does not significantly
distinguish the domain name from the mark and is related to Complainant’s
business. See Brown
& Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001)
(finding that the <hoylecasino.net> domain name is confusingly similar to
the complainant’s HOYLE mark, and that the addition of “casino,” a generic word
describing the type of business in which the complainant is engaged, does not
take the disputed domain name out of the realm of confusing similarity); Marriott
Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000)
(finding that the respondent’s domain name <marriott-hotel.com> is
confusingly similar to the complainant’s MARRIOTT mark).
Complainant has established Policy ¶ 4(a)(i).
Respondent is using the disputed domain names to refer
Internet users seeking Complainant to competitor and third-party sites,
including gambling and adult dating services.
The Panel finds that appropriating another’s mark to refer Internet
traffic to its competitors and third-party gambling and adult sites is neither
a bona fide offering of a good or service, pursuant to Policy ¶ 4(c)(i),
nor a legitimate noncommercial or fair use, pursuant to Policy ¶
4(c)(iii). See 24 Hour Fitness USA,
Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb.
Forum Sep. 26, 2003) (holding that Respondent’s use of the
<24hrsfitness.com>, <24-hourfitness.com> and
<24hoursfitness.com> domain names to redirect Internet users to a website
featuring advertisements and links to Complainant’s competitors could not be
considered a bona fide offering of goods or services or a legitimate
noncommercial or fair use); Clear Channel Commc’ns, Inc. v. Beaty Enters.,
FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding that the respondent, as a
competitor of the complainant, had no rights or legitimate interests in a
domain name that utilized the complainant’s mark for its competing website).
Additionally, Respondent, in registering <wwwdelta.net>, <wwwdelta.org>, and
<wwwdeltaairlines.net>, created domain names that merely
append “www” to Complainant’s marks.
This practice, known as “typosquatting,” attempts to siphon off the mark
holder’s customers by preying on the Internet user’s typing mistakes when
entering a domain name in the URL bar of a browser. Respondent’s practice of typosquatting is further evidence that
it lacks rights and legitimate interests pursuant to Policy 4(a)(ii). See Black & Decker Corp. v. Khan, FA 137223 (Nat.
Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where the
respondent used the typosquatted <wwwdewalt.com> domain name to divert
Internet users to a search engine webpage, and failed to respond to the
complaint); RE/MAX Int’l, Inc. v. Seocho, FA 142046 (Nat. Arb. Forum
Feb. 25, 2003) (finding that the respondent has no rights or legitimate
interests in the <wwwremax.com> domain name as it is merely using the
complainant’s mark to earn profit from pop-up advertisements).
There is nothing in the record, including the WHOIS
registration information, which indicates that Respondent is commonly known by
any of the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720
(Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS
information implies that Respondent is ‘commonly known by’ the disputed domain
name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see
also Wells Fargo & Co. v. Onlyne Corp.
Services11, Inc., FA 198969 (Nat. Arb.
Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed
domain [name], one can infer that Respondent, Onlyne Corporate Services11, is
not commonly known by the name ‘welsfargo’ in any derivation.”).
Complainant has established Policy ¶ 4(a)(ii).
Respondent has
registered the <wwwdelta.net>, <wwwdelta.org>, and
<wwwdeltaairlines.net> domain names to generate Internet traffic by
relying on users’ typing mistakes. The
Panel finds that this practice is evidence of bad faith registration and use
pursuant to 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,” which was 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.”).
Respondent is appropriating Complainant’s marks in the <wwwdelta.net>,
<wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>,
and <flysong.org> domain names to lead Complainant’s customers to
travel-related websites, some of which subsequently lead to Complainant’s
competitors. The Panel finds that this
is evidence of bad faith registration and use pursuant to Policy ¶
4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000)
(finding that the respondent registered the domain name in question to disrupt
the business of the complainant, a competitor of the respondent); see also Puckett, Individually v. Miller,
D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted
business from the complainant to a competitor’s website in violation of Policy
¶ 4(b)(iii)).
Additionally, Respondent is appropriating the <wwwdelta.net>,
<wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>,
and <flysong.org> domain names to lead Internet users to gambling
and adult-oriented dating sites. The
Panel infers that Respondent is receiving click-through fees for traffic
referrals. Therefore, Respondent is
appropriating Complainant’s mark in confusingly similar domain names for
commercial gain, which is evidence of bad faith registration and use pursuant
to Policy ¶ 4(b)(iv). See Mars, Inc. v. Double Down Magazine,
D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶ 4(b)(iv)
where the respondent linked the domain name <marssmusic.com>, which is
identical to the complainant’s mark, to a gambling website); see also Youtv, Inc. v. Alemdar, FA 94243 (Nat.
Arb. Forum Apr. 25, 2000) (finding bad faith where the respondent attracted
users to his website for commercial gain and linked his website to pornographic
websites).
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 <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: November 22, 2005
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum