Delta Corporate Identity, Inc. v. Seventh Summit Ventures
Claim Number: FA0203000106112
Complainant is Delta Corporate Identity, Inc., Atlanta, GA (“Complainant”) represented by Paul D. McGrady, of Ladas & Parry. Respondent is Seventh Summit Ventures, St. Johns, WEST INDIES (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <deltaair.com>, registered with Tucows.
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 March 26, 2002; the Forum received a hard copy of the Complaint on March 27, 2002.
On March 27, 2002, Tucows confirmed by e-mail to the Forum that the domain name <deltaair.com> is registered with Tucows and that Respondent is the current registrant of the name. Tucows has verified that Respondent is bound by the Tucows 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 March 28, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 17, 2002 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 firstname.lastname@example.org by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On April 25, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq., 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.” 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.
The disputed domain name <deltaair.com> is confusingly similar to DELTA and DELTA AIR LINES, registered marks in which Complainant holds rights.
Respondent has no rights or legitimate interests in respect of the disputed domain name.
Respondent registered and used the disputed domain name in bad faith.
Respondent did not submit a Response in this proceeding.
Complainant holds numerous trademarks in DELTA and DELTA AIR LINES, registered in Argentina, Australia, Canada, Costa Rica, France, Guatemala, and the United States. Complainant’s licensee, Delta Air Lines, Inc. (“Delta”), serves 205 cities in the U.S. as well as 44 cities in 28 foreign countries.
Delta is the largest U.S. airline in terms of aircraft departures and passengers enplaned and the third largest as measured by operating revenues and revenue passenger miles flown. According to Fortune Magazine, Delta is the 116th largest company in the world. Delta operates a website at <delta.com>, through which it directly markets its services to consumers.
Through Delta’s tremendous international and online presence and the expenditure of millions of dollars in advertising, Complainant’s marks have obtained worldwide notoriety and fame. Complainant asserts that its marks are famous within the meaning of U.S. and other jurisdictions’ trademark laws.
Respondent registered the disputed domain name on August 30, 1997, and has used the domain name to redirect Internet users to a travel services provider who operates in competition with Delta and <delta.com>.
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(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.
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 and is being used in bad faith.
Identical and/or Confusingly Similar
Complainant has demonstrated its rights in the DELTA and DELTA AIR LINES marks through registration with the United States Patent and Trademark Office and the trademark registrars of other various countries.
Respondent’s domain name <deltaair.com> is confusingly similar to Complainant’s DELTA and DELTA AIR LINES marks. The domain name merely adds the generic word “air” to Complainant’s DELTA mark. The use of a generic suffix or word, which is descriptive of the business of the Complainant, does not defeat a claim of confusing similarity. See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to Complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which Complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Broadcom Corp. v. Domain Depot, FA 96854 (Nat. Arb. Forum Apr. 23, 2001) (finding the <broadcomonline.com> domain name is confusingly similar to Complainant’s BROADCOM mark).
Additionally, the disputed domain name is confusingly similar to Complainant’s DELTA AIR LINES mark, because the disputed domain name merely drops the words “lines” from the mark. See WestJet Air Center, Inc. v. West Jets LLC, FA 96882 (Nat. Arb. Forum Apr. 20, 2001) (finding that the <westjets.com> domain name is confusingly similar to Complainant’s WEST JET AIR CENTER mark).
Rights or Legitimate Interests
Complainant has sufficiently established its rights to and interests in the DELTA family of marks. Because Respondent has not submitted a Response in this matter, the Panel may presume it holds no such rights or interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Respondent’s use of the <deltaair.com> domain name to direct Internet users to a website that competes with Complainant cannot be deemed a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from Complainant's site to a competing website); see also Chanel, Inc. v. Cologne Zone, D2000-1809 (WIPO Feb. 22, 2001) (finding that use of a mark to sell complainant’s perfume, as well as other brands of perfume, is not bona fide use).
Further, there is no evidence to suggest that Respondent is commonly known by the domain name pursuant to Policy ¶ 4(c)(ii); Respondent is only known to this Panel as Seventh Summit Ventures. See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).
The Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name, and that Policy ¶ 4(a)(ii) has thus been satisfied.
Registration and Use in Bad Faith
Complainant’s DELTA and DELTA AIR LINES marks are famous and internationally known among the general public. Respondent’s intentional registration of a confusingly similar domain name suggests an opportunistic attempt to trade in bad faith upon Complainant’s fame and goodwill. See Northwest Airlines, Inc. v. Koch, FA 95688 (Nat. Arb. Forum Oct. 27, 2000) (“the selection of a domain name [northwest-airlines.com] which entirely incorporates the name of the world’s fourth largest airline could not have been done in good faith”); see also Singapore Airlines Ltd v. P & P Servicios de Communicacion S.L., D2000-0643 (WIPO Aug. 29, 2000) (“The domain name ‘singaporeairlines.com’ is so obviously connected with a well-known airline that its very registration and use by someone with no connection to the airline suggests opportunistic bad faith”).
Respondent’s use of the disputed domain name to provide and sell services in competition with Complainant (and/or its licensee Delta) demonstrates an attempt to attract, for commercial gain, Internet users seeking Complainant’s website. By attempting to attract users through likelihood of confusion, Respondent has demonstrated bad faith use pursuant to Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where Respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of Complainant).
The Panel finds that Respondent registered and used the disputed domain name in bad faith within the meaning of the Policy, and thus, Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.
Accordingly, it is Ordered that the <deltaair.com> domain name be transferred from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: May 6, 2002
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