American Airlines, Inc. v. Michael Nakhleh
Claim Number: FA0708001063459
Complainant is American Airlines, Inc. (“Complainant”), represented by Kristin
Jordan Harkins, of Conley Rose, P.C.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <americanairlines.mobi>, registered with GoDaddy.com.
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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On August 22, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 11, 2007 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, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 makes the following assertions:
1. Respondent’s <americanairlines.mobi> domain name is identical to Complainant’s AMERICAN AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <americanairlines.mobi> domain name.
3. Respondent registered and used the <americanairlines.mobi> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Airlines, Inc., is one of the world’s largest airlines. In connection with the provision of these services, Complainant has registered a number of trade and service marks with the United States Patent and Trademark Office (“USPTO”), including the AMERICAN AIRLINES mark (Reg. No. 514,294 issued August 23, 1949).
Respondent registered the disputed 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 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. 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 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.
Complainant attempts to establish rights in the AMERICAN AIRLINES
mark through registration of the mark with the USPTO. The Panel finds that Complainant’s timely
registration and subsequent extensive use of the mark for nearly sixty years
sufficiently establishes rights in the mark pursuant to Policy ¶ 4(a)(i). See Mothers
Against Drunk Driving v. phix, FA 174052
(Nat. Arb. Forum Sept. 25, 2003) (finding that the complainant’s registration
of the MADD mark with the United States Patent and Trademark Office established
the complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i)); see also ESPN, Inc. v. MySportCenter.com,
FA 95326 (Nat. Arb. Forum
Respondent’s <americanairlines.mobi> domain name contains Complainant’s mark in its entirety, eliminates the space between the two words of Complainant’s mark and adds the generic top-level domain (“gTLD”) “.mobi.” The Panel finds that the lack of a space between the two words in a mark and the addition of a gTLD to an otherwise identical mark fails to adequately distinguish the domain name from the mark pursuant to Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Croatia Airlines v. Kwen Kijong, AF-0302 (eResolution Sept. 25, 2000) (finding that the domain name <croatiaairlines.com> is identical to the complainant's CROATIA AIRLINES trademark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
In 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 (
Respondent’s disputed domain name resolves to no
content. The Panel finds that
Respondent’s failure to associate content with its <americanairlines.mobi> domain name indicates a lack of
rights or legitimate interests in the domain name pursuant to Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
See Pharmacia & Upjohn AB v.
Romero, D2000-1273 (WIPO
Complainant asseverates that Respondent is not commonly
known by the disputed domain name. A
review of Respondent’s WHOIS registration information reveals that the
registrant of the <americanairlines.mobi>
domain name is “Michael Nakhleh.” The
Panel finds, in the absence of proffered evidence from Respondent, that
Respondent is not commonly known by the disputed domain name pursuant to Policy
¶ 4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb.
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
As indicated above, the disputed domain name is not currently featuring any content. The Panel finds that Respondent’s failure to provide content for its disputed domain name evinces registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <americanairlines.mobi> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: October 2, 2007
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