Breeze Aviation Group, Inc. v. saviour umoh
Claim Number: FA2206001999828
Complainant is Breeze Aviation Group, Inc. ("Complainant"), represented by Georges Nahitchevansky of Kilpatrick Townsend & Stockton LLP, New York, USA. Respondent is saviour umoh ("Respondent"), Philippines.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <breezeaircargo.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 9, 2022; the Forum received payment on June 9, 2022.
On June 10, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by email to the Forum that the <breezeaircargo.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 14, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 5, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@breezeaircargo.com. Also on June 14, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 11, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is the owner and operator of an airline that currently provides flights on 77 routes between 28 cities across the United States. Complainant has used BREEZE AIRWAYS and BREEZE in connection with its services since the initial announcement of its launch in February 2020 and the commencement of flights in May 2021. Complainant has promoted its brand and marks extensively, and its launch and growth have received widespread media attention (as evidenced by representative examples submitted with the Complaint). Complainant also uses a stylized form of the BREEZE mark in the form of a logo that appears on its planes, website, and promotional materials. Trademark applications for BREEZE AIRWAYS are pending in the United States and various other jurisdictions. Complainant also asserts common law trademark rights in BREEZE AIRWAYS and BREEZE based upon the recognition and distinctiveness that the marks have acquired as a result of use and promotion.
Respondent registered the disputed domain name <breezeaircargo.com> via a privacy registration service in April 2022. The domain name is being used for a website that attempts to pass off as Complainant to offer alleged air cargo, freight, and logistics services. The website displays a copy of Complainant’s BREEZE logo in the same stylized form used by Complainant, along with photographs of Complainant’s airplanes with the BREEZE mark and logo clearly visible. Complainant states that the same entity appears to have registered a domain name incorporating the mark of a different airline and is using it for a similar website that attempts to pass off as that airline. Complainant alleges that Respondent is using the disputed domain name to trick consumers or companies into disclosing personal information or for some other fraudulent scheme. Complainant states that Respondent is not commonly known by the domain name, has no relationship with Complainant, and is not authorized to use Complainant's marks.
Complainant contends on the above grounds that the disputed domain name <breezeaircargo.com> is confusingly similar to its BREEZE and BREEZE AIRWAYS marks; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
Complainant asserts common law trademark rights in BREEZE AIRWAYS and BREEZE. Respondent has not challenged this claim, and Respondent’s conduct obviously is targeted at Complainant and its claimed marks. The Panel considers the evidence submitted by Complainant sufficient to demonstrate common law rights in the mark for purposes of paragraph 4(a)(i) of the Policy.
The disputed domain name <breezeaircargo.com> incorporates the BREEZE mark and most of the BREEZE AIRWAYS mark, adding the generic terms "air" and "cargo" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's marks. See, e.g., JetBlue Airways Corp. v. Registration Private, Domains By Proxy, LLC / Zac Afron, Jet Blue Air Cargo / James Blue, Jet Blue Air Cargo, D2017-1938 (WIPO Nov. 23, 2017) (finding <jetblueaircargo.com> confusingly similar to JETBLUE). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and its sole apparent use has been for a website that attempts to pass off as Complainant, for what the Panel infers to be fraudulent purposes. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Airbus SAS v. Privacy Service Provided by Withheld for Privacy ehf / Mark Jones, D2022-0303 (WIPO Mar. 18, 2022) (finding lack of rights or interests in similar circumstances); JetBlue Airways Corp. v. Registration Private, Domains By Proxy, LLC / Zac Afron, Jet Blue Air Cargo / James Blue, Jet Blue Air Cargo, supra (same); United Air Lines, Inc. v. HOLLY V SCHILLING, FA 1479769 (Forum Feb. 25, 2013) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register a domain name incorporating Complainant’s marks without authorization, and is using it for a website that attempts to pass off as Complainant, for what the Panel infers to be fraudulent purposes. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Airbus SAS v. Privacy Service Provided by Withheld for Privacy ehf / Mark Jones, supra (finding bad faith in similar circumstances); JetBlue Airways Corp. v. Registration Private, Domains By Proxy, LLC / Zac Afron, Jet Blue Air Cargo / James Blue, Jet Blue Air Cargo, supra (same); United Air Lines, Inc. v. HOLLY V SCHILLING, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <breezeaircargo.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 12, 2022
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