Aero California S.A. DE C.V. v. Douglas Lagos
Claim Number: FA0708001058868
Complainant is Aero California S.A. DE C.V., (“Complainant”), represented by Marc A. Paul, of Steptoe
& Johnson LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aero-california.us>, registered with Namescout.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on
On September 17, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of October 8, 2007 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).
Having received no Response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the Policy, the 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.
1. Respondent’s <aero-california.us> domain name is confusingly similar to Complainant’s AERO CALIFORNIA mark.
2. Respondent does not have any rights or legitimate interests in the <aero-california.us> domain name.
3. Respondent registered and used the <aero-california.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Aero California S.A. DE C.V., is
a well known provider of air transportation services for passengers, mail and
property. Complainant has operated these
Respondent registered the <aero-california.us> domain name on
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 the 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 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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
Complainant attempts to establish rights in the AERO CALIFORNIA mark
through registration of the mark with the USPTO. The Panel finds that Complainant’s timely
registration and subsequent use of the AERO CALIFORNIA mark sufficiently
establishes rights in the mark pursuant to Policy ¶ 4(a)(i). See ESPN, Inc. v. MySportCenter.com, FA 95326 (Nat. Arb. Forum
Respondent’s <aero-california.us> domain name
contains Complainant’s mark in its entirety, with the exception of the addition
of a hyphen between the two words of Complainant’s mark and the country code
top-level domain (“ccTLD”) “.us.” The
Panel finds that the mere addition of a hyphen and a ccTLD does not
sufficiently distinguish the domain name from the mark pursuant to Policy ¶
4(a)(i). See Tropar Mfg. Co. v. TSB,
FA 127701 (Nat. Arb. Forum Dec. 4, 2002) (finding that since the addition of
the country-code “.us” fails to add any distinguishing characteristic to the
domain name, the <tropar.us> domain name is identical to the
complainant’s TROPAR mark); see also Sports Auth. Mich. Inc. v. Batu 5,
FA 176541 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
instances where Complainant has made a prima
facie case in support of its allegations, the burden shifts to Respondent
to set forth concrete evidence indicating that it has rights or legitimate interests
in accordance with Policy ¶ 4(a)(ii). See SEMCO Prods., LLC v. dmg world media (
There is no
evidence in the record to indicate that Respondent is the holder or beneficiary
of a service or trademark registration for the <aero-california.us> domain name, or that Respondent is
commonly known by the disputed domain name or licensed by Complainant to use
the name in any way. Accordingly, the
Panel finds that Respondent has not satisfied the requirements of Policy ¶
4(c)(i) or Policy ¶ 4(c)(iii). See Meow
Media Inc. v. Basil, FA
113280 (Nat. Arb. Forum
Respondent is using the <aero-california.us> domain name to host a website that displays hyperlinks to various third-party websites, some of which are in direct competition with Complainant. Such use is presumably for Respondent’s own commercial gain through the earning of click-through fees for the hyperlinks displayed. The Panel finds that such use of the <aero-california.us> domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). See Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names); see also MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where the respondent attempted to profit using the complainant’s mark by redirecting Internet traffic to its own website).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent is using the <aero-california.us> domain name to host advertising links for a variety of third-party websites, some of which are in direct competition with Complainant. Such use constitutes a disruption of Complainant’s business, and is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to UDRP ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Moreover, as discussed above, the Panel infers that Respondent’s use of the <aero-california.us> domain name is for Respondent’s own commercial benefit through the accrual of click-through fees. As the disputed domain name is confusingly similar to Complainant’s AERO CALIFORNIA mark, there is also the possibility that Internet users will be confused as to Complainant’s affiliation with the disputed domain name and corresponding website. Thus, the Panel further finds evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to UDRP ¶ 4(b)(iv)); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aero-california.us> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: October 29, 2007
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