Sun Country, Inc. v. Travel Company / Digital Marketing
Claim Number: FA1912001874032
Complainant is Sun Country, Inc. (“Complainant”), represented by Elizabeth C. Buckingham of Dorsey & Whitney LLP, Minnesota, USA. Respondent is Travel Company / Digital Marketing (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <suncountry-airlines.com> and <sun-country-airlines.com>, registered with GoDaddy.com, LLC.
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 Forum electronically on December 5, 2019; the Forum received payment on December 5, 2019.
On December 9, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <suncountry-airlines.com> and <sun-country-airlines.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 December 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 30, 2019 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@suncountry-airlines.com, postmaster@sun-country-airlines.com. Also on December 9, 2019, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On January 5, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 names be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <suncountry-airlines.com> and <sun-country-airlines.com> domain names are confusingly similar to Complainant’s SUN COUNTRY AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <suncountry-airlines.com> and <sun-country-airlines.com> domain names.
3. Respondent registered and uses the <suncountry-airlines.com> and <sun-country-airlines.com> domain names in bad faith.
B. Respondent failed to file a Response in this proceeding.
Complainant, Sun Country, Inc., owns and operates a well-known airline and holds registrations for the SUN COUNTRY and SUN COUNTRY AIRLINES marks with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,303,139, registered Oct. 30, 1984; Reg. No. 4,703,001, registered Mar. 17, 2015).
Respondent registered the <suncountry-airlines.com> domain name on November 28, 2018 and the <sun-country-airlines.com> domain name on December 10, 2018, and uses them to pass off as Complainant and sell competing products and 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."
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.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that Complainant’s registration of the SUN COUNTRY AIRLINES mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <suncountry-airlines.com> and <sun-country-airlines.com> domain names incorporate the SUN COUNTRY AIRLINES mark in its entirety, adding one or more hyphens and the “.com” gTLD. The addition of hyphens and a gTLD fails to sufficiently distinguish a domain name from a mark for the purposes of Policy ¶ 4(a)(i). See ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug, 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). Accordingly, the Panel finds that Respondent’s <suncountry-airlines.com> and <sun-country-airlines.com> domain names are confusingly similar to Complainant’s SUN COUNTRY ARILINES mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent lacks rights or legitimate interests in the <suncountry-airlines.com> and <sun-country-airlines.com> domain names, as Respondent is not commonly known by the domain names. Complainant has not authorized, licensed, or otherwise permitted Respondent to use Complainant’s marks. The WHOIS information for the <suncountry-airlines.com> and <sun-country-airlines.com> domain names lists the registrant as “Travel Company / Digital Marketing.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Complainant further argues that Respondent’s lack of rights or legitimate interests in the <suncountry-airlines.com> and <sun-country-airlines.com> domain names is demonstrated by its failure to use the disputed domain names to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant contends that Respondent uses the disputed domain names’ resolving websites to impersonate Complainant and sell competing products and services. The use of a domain name that is confusingly similar to a complainant’s mark to attempt to pass off as a complainant and sell competing products and services is not a use indicative of rights or legitimate interests under Policy ¶¶ 4(c)(i) or (iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”). Complainant provides screenshots of Respondent’s resolving websites, each of which mimic Complainant’s website by featuring Complainant’s logo, similar font stylization and coloration, copying the general look and feel, and even including a misleading notice at the bottom of each page: “Sun Country, Sun Country Airlines, Sun Country Vacations, Sun Country Connections, the Compass logo, Sun Country Rewards, and Flitebites are trademarks of MN Airlines, LLC d/b/a Sun Country Airlines.” The Panel finds this use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent uses the <suncountry-airlines.com> and <sun-country-airlines.com> domain names to resolve to websites that attempt to pass off as Complainant and divert Internet users to Respondent’s websites. Using a confusingly similar domain name to commercially benefit via passing off can evince bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Accordingly, the Panel finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant contends that, in light of the fame and notoriety of Complainant’s SUN COUNTRY and SUN COUNTRY AIRLINES marks, it is inconceivable that Respondent could have registered the <suncountry-airlines.com> and <sun-country-airlines.com> domain names without actual knowledge of Complainant’s rights in the marks. Using a confusingly similar domain name to impersonate a complainant and sell competing products is adequate evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”). Complainant further asserts that Respondent’s use of the disputed domain names to impersonate Complainant and sell competing air travel products and services indicates it had actual knowledge of Complainant’s rights in the SUN COUNTRY and SUN COUNTRY AIRLINES marks. Complainant also argues that the resolving websites include a notice at the bottom of each page: “Sun Country, [and] Sun Country Airlines, . . . are trademarks of MN Airlines, LLC d/b/a Sun Country Airlines,” which further indicates Respondent had actual knowledge of Complainant’s rights in the marks. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights and thus registered the domain names in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied 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 <suncountry-airlines.com> and <sun-country-airlines.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 6, 2020
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