Olympic Airlines v. Nevis Domains LLC.
Claim Number: FA0605000702585
Complainant is Olympic Airlines (“Complainant”), represented by Philip M. Livingston, of Eckert Seamans Cherin & Mellott, LLC, 1747 Pennsylvania Avenue, NW, Suite 1200, Washington, DC 20006. Respondent is Nevis Domains LLC. (“Respondent”), 222-3 Main Street, Charlestown, Nevis 0000, KN.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <olympicairline.com>, registered with Moniker Online Services, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 8, 2006; the National Arbitration Forum received a hard copy of the Complaint on May 8, 2006.
On May 16, 2006, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <olympicairline.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 May 24, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 13, 2006 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@olympicairline.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 19, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <olympicairline.com> domain name is confusingly similar to Complainant’s OLYMPIC AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <olympicairline.com> domain name.
3. Respondent registered and used the <olympicairline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Olympic Airlines, was founded in 1930, started using the name Olympic Airways in 1958 and then subsequently used the name Olympic Airlines. It maintains a website under the domain name <olympicairlines.com> which is used in connection with its offering of air transportation and travel services. Complainant has extensively used the OLYMPIC AIRLINES mark for the operation of its airline, both domestically in Greece and through its international flights.
Respondent registered the <olympicairline.com> domain name on February 4, 2000. Respondent’s domain name resolves to a website that displays links that are identified as being links to Complainant’s sites. However, clicking on the links actually leads Internet users to websites of Complainant’s competitors.
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 is not required to own a trademark registration to establish rights in the OLYMPIC AIRLINES mark under Policy ¶ 4(a)(i). See SeekAmerica Networks Inc. v. Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not require that the complainant's trademark or service mark be registered by a government authority or agency for such rights to exist); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”).
Complainant has established common law rights in the OLYMPIC AIRLINES mark through continuous and extensive use of the mark in connection with its airline business since 1958. Complainant has also registered the <olympicairlines.com> domain name. Therefore, Complainant’s OLYMPIC AIRLINES mark has acquired secondary meaning sufficient to establish common law rights in the mark. See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also Fishtech, Inc. v. Rossiter, FA 92976 (Nat. Arb. Forum Mar. 10, 2000) (finding that the complainant has common law rights in the mark FISHTECH that it has used since 1982).
Respondent’s <olympicairline.com> domain name is confusingly similar to Complainant’s OLYMPIC AIRLINES mark under Policy ¶ 4(a)(i), as it simply omits the “s” from the mark. In Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000), the panel found that omitting the letter “s” from the complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive). Consequently, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been
satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the <olympicairline.com> domain name. Complainant has the initial burden of proof in establishing that Respondent lacks rights or legitimate interests in the domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Respondent’s failure to respond to the complaint raises a presumption that Respondent has no rights or legitimate interests in the <olympicairline.com> domain name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent’s WHOIS information does not suggest that Respondent is commonly known by the disputed domain name. There is also no evidence in the record to suggest that Respondent is or has ever been known by the disputed domain name. In Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001), the panel found that the respondent did not have rights in a domain name where the respondent was not known by the mark. See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name). Thus, the Panel finds that the Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Furthermore, Respondent’s <olympicairline.com> domain name, which is confusingly similar to Complainant’s OLYMPIC AIRLINES mark, resolves to a website which displays links that are identified as being links to Olympic Airlines sites, although they actually resolve to websites of Complainant’s competitors. The Panel finds that using Complainant’s mark to redirect Internet users to websites that compete with Complainant is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site).
The Panel finds that Policy ¶
4(a)(ii) has been satisfied.
Respondent’s <olympicairline.com> domain name
resolves to a website which uses Complainant’s mark to redirect Internet users
to Complainant’s competitors. Thus, the
Panel finds that Respondent registered and used Complainant’s OLYMPIC AIRLINES
mark with intent to disrupt Complainant’s business. Such conduct is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iii). See 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)); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶¶
4(b)(iii) [and] (iv).”).
Moreover, based on the uncontested evidence presented by Complainant, the Panel infers that Respondent receives click-through fees for diverting Internet users to a website that displays links which resolve to websites in direct competition with Complainant. Furthermore, Respondent’s domain name incorporating Complainant’s OLYMPIC AIRLINES mark is capable of creating confusion as to Complainant’s affiliation with the
<olympicairline.com> domain name and resulting
website. In Gardens
Alive, Inc. v. D&S Linx, FA 203126
(Nat. Arb. Forum Nov. 20, 2003), the panel found that the respondent registered
and used the <my-seasons.com> domain name in bad faith pursuant to Policy
¶¶ 4(b)(iii) and (iv) because the respondent was using a domain name that was
confusingly similar to the MYSEASONS mark for commercial benefit by diverting
Internet users to the <thumbgreen.com> website, which sold competing
goods and services. See Amazon.com,
Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent
is using the domain name at issue in direct competition with Complainant, and
giving the impression of being affiliated with or sponsored by Complainant,
this circumstance qualifies as bad faith registration and use of the domain
name pursuant to Policy ¶ 4(b)(iv).”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <olympicairline.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 27, 2006
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