Dallas/Fort Worth International Airport Board v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2006001898978
Complainant is Dallas/Fort Worth International Airport Board (“Complainant”), represented by Amanda K. Greenspon of Munck Wilson Mandala, LLP, Texas, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dfwairpot.com>, registered with GoDaddy.com, LLC.
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 Forum electronically on June 4, 2020; the Forum received payment on June 4, 2020.
On June 5, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dfwairpot.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 9, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 29, 2020 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@dfwairpot.com. Also on June 9, 2020, 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 July 1, 2020, 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" 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Dallas/Fort Worth International Airport Board, represents an international airport facilitating private and commercial air travel in the North Central Texas area. Complainant has rights in the DFW AIRPORT mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,146,258, registered May 22, 2012). Respondent’s <dfwairpot.com> domain name is functionally identical and confusingly similar to Complainant’s DFW AIRPORT mark since it is simply a misspelled version of the mark that adds the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <dfwairpot.com> domain name because Respondent is not commonly known by the disputed domain name and is not permitted to use Complainant’s DFW AIRPORT mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent redirects Internet traffic to a site that includes links to other webpages.
Respondent registered and uses the <dfwairpot.com> domain name in bad faith. Respondent displays a clear pattern of bad faith registration and use of domain names. Additionally, Respondent attracts users for commercial gain by displaying third-party commercial links. Further, Respondent’s website facilitates the distribution of malicious software to Internet users. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the DFW AIRPORT mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Dallas/Fort Worth International Airport Board, represents an international airport facilitating private and commercial air travel in the North Central Texas area. Complainant has rights in the DFW AIRPORT mark based upon registration with the USPTO (e.g., Reg. No. 4,146,258, registered May 22, 2012). Respondent’s <dfwairpot.com> domain name is confusingly similar to Complainant’s DFW AIRPORT mark.
Respondent registered the <dfwairpot.com> domain name on October 18, 2019.
Respondent does not have rights or legitimate interests in the <dfwairpot.com> domain name. Respondent redirects Internet traffic to a site that includes links to other webpages.
Respondent registered and uses the <dfwairpot.com> domain name in bad faith.
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”).
Complainant has rights in the DFW AIRPORT mark under Policy ¶ 4(a)(i) based upon registration with the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <dfwairpot.com> domain name is confusingly similar to Complainant’s DFW AIRPORT mark since it is simply a misspelled version of the mark that adds the “.com” gTLD.
Respondent does not have rights or legitimate interests in the <dfwairpot.com> domain name because Respondent is not commonly known by the disputed domain name and is not permitted to use Complainant’s DFW AIRPORT mark. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii), especially when a privacy service is engaged. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record lists the registrant as “Carolina Rodrigues / Fundacion Comercio Electronico.” Therefore, Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent fails to use the <dfwairpot.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent redirects Internet traffic to a site that includes links to other webpages. Use of a disputed domain name to host commercial hyperlinks is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”).
Respondent registered and uses the <dfwairpot.com> domain name in bad faith since Respondent displays a clear pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii). A history of negative UDRP decisions against a respondent may establish a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Maurice Sporting Goods, Inc. v. Xiaodong Peng, FA1506001625928 (Forum Aug. 1, 2015) (finding that the respondent had engaged in bad faith pursuant to Policy ¶ 4(b)(ii) where the respondent had been unsuccessful in three previous UDRP cases). A UDRP search for the Respondent reveals dozens of decisions against the Respondent.
Respondent registered and uses the <dfwairpot.com> domain name in bad faith because Respondent capitalizes on confusion to attract users to a site which displays third-party commercial links. Use of a confusingly similar domain name to display third-party commercial hyperlinks is evidence of bad faith attraction for commercial gain under Policy ¶4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Further, Respondent’s website facilitates the distribution of malicious software to Internet users. Distribution of malware through a disputed domain is evidence of bad faith under Policy ¶ 4(a)(iii). See Asbury Communities, Inc. v. Tiffany Hedges, FA 1785054 (Forum June 18, 2018).Browser warnings of possible malware appear upon accessing the disputed domain and in some cases the domain redirects to another website that attempts to download software under the guise of an “Adobe Flash Player” software package.
Respondent registered the <dfwairpot.com> domain name with actual knowledge of Complainant’s rights in the DFW AIRPORT mark. Actual knowledge of a complainant’s rights in a mark evidences bad faith registration and use under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dfwairpot.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 11, 2020
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