American Airlines, Inc. v. Insane Entertainment, LLC c/o Adam Maysonet
Claim Number: FA0708001065242
Complainant is American Airlines, Inc. (“Complainant”), represented by Kristin
Jordan Harkins of Conley Rose, P.C., 5700 Granite
Parkway, Suite 330, Plano, TX, 75024.
Respondent is Insane Entertainment, LLC c/o Adam
Maysonet (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <americanairlinesvacations.com>, registered with Enom, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically August 16, 2007; the National Arbitration Forum received a hard copy of the Complaint August 20, 2007.
On August 17, 2007, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <americanairlinesvacations.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. verified that Respondent is bound by the Enom, Inc. registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 24, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 13, 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 postmaster@americanairlinesvacations.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 20, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain name that Respondent registered, <americanairlinesvacations.com>, is confusingly similar to Complainant’s AMERICAN AIRLINES mark.
2. Respondent has no rights to or legitimate interests in the <americanairlinesvacations.com> domain name.
3. Respondent registered and used the <americanairlinesvacations.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Airlines, Inc., is one the world’s largest international airlines. Complainant has continuously used the American Airlines mark since at least as early as April 1934, and has registered the mark in numerous jurisdictions worldwide including with the United Stated Patent and Trademark Office (“USPTO”) (Reg. No. 514,294 issued August 23, 1949).
Respondent’s <americanairlinesvacations.com> domain name was registered June 13, 2005, and redirects Internet users to the <airline-vacations.com> domain name. This domain name resolves to a website that features links to various third-party websites that offer vacation and travel services that attempt to compete with Complainant’s business. Moreover, this website features various pictures of Complainant’s jets.
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."
Given 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 will draw such inferences as the Panel 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 Complainant to 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 established rights to and legitimate interests
in the AMERICAN AIRLINES mark through registration with the USPTO. See
The disputed domain name that Respondent registered, <americanairlinesvacations.com>,
contains the Complainant’s AMERICAN AIRLINES mark in its entirety except that
it omits the space between “American” and “Airlines.” It then includes the generic descriptive term
“vacations” and the generic top level domain (“gTLD”) “.com.” It is well established that the omission of a
space, the inclusion of a gTLD and of a generic term that corresponds with some
of the activities engaged in under a complainant’s mark does not negate a finding
of confusing similarity. As such, the
Panel finds that Respondent’s disputed domain name is confusingly similar to
Complainant’s mark. See Oki Data Ams., Inc. v.
ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain
name wholly incorporates a Complainant’s registered mark is sufficient to
establish identity [sic] or confusing similarity for purposes of the Policy
despite the addition of other words to such marks”); see also Gurney’s Inn Resort
& Spa Ltd. v. Whitney, FA 140656 (Nat. Arb. Forum Feb. 19, 2003)
(“Punctuation and spaces between words are not significant in determining the
similarity of a domain name and a mark because punctuation and spaces are not
reproducible in a domain name.”); see
also 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 Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept.
22, 2000) (finding confusing similarity where the respondent’s domain name
combines the complainant’s mark with a generic term that has an obvious
relationship to the complainant’s business).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii),
Complainant must first make a prima facie
case that Respondent has no rights or legitimate interests. See
Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov.
28, 2000) (finding that, under certain circumstances, the mere assertion by the
complainant that the respondent has no right or legitimate interest is
sufficient to shift the burden of proof to the respondent to demonstrate that
such a right or legitimate interest does exist). The Panel finds that Complainant made a prima facie case and thus the burden
shifts to Respondent to demonstrate that it does have rights or legitimate
interests in the disputed domain names.
See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent.”).
Respondent failed to submit a Response to the Complaint. This Panel thus presumes that Respondent has no rights or legitimate interests in the <americanairlinesvacations.com> domain name, but will nevertheless consider all available evidence in the record before making its final determination. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002)(“Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”).
Nowhere in Respondent’s WHOIS information or anywhere else in the record does it indicate that Respondent is or ever has been commonly known by the disputed domain name. Moreover, Respondent has not sought and has not been granted permission from Complainant to use the AMERICAN AIRLINES mark. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the 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 the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
The disputed domain name, <americanairlinesvacations.com>, redirects
Internet users to the <airline-vacations.com> domain name. This domain name resolves to a website that
features links to various third-party websites that offer vacation and travel
services that attempt to compete with Complainant’s business. Consequently, the Panel finds that this not to
be a bona fide offering of goods or
service pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use
pursuant to Policy ¶ 4(c)(iii). See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat.
Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the
disputed domain name to redirect Internet users to a financial services website,
which competed with the complainant, was not a bona fide offering of
goods or services); see also Gardens Alive, Inc. v. D&S
Linx, FA 203126 (Nat. Arb. Forum Nov. 20,
2003) (finding that the respondent used a domain name for commercial benefit by
diverting Internet users to a website that sold goods and services similar to
those offered by the complainant and thus, was not using the name in connection
with a bona fide offering of goods or services nor a legitimate
noncommercial or fair use).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
The <americanairlinesvacations.com> domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark and redirects Internet users to another domain name and website that feature links to various third-parties who offer vacation and travel services that compete with Complainant’s business. The Panel finds this diversionary use supports findings of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business).
Respondent presumably receives click-through-fees by
providing hyperlinks to third-party websites that offer services in competition
with those offered under Complainant’s mark.
Moreover, the disputed domain is confusingly similar to Complainant’s
mark and contains numerous pictures of Complainant’s jets, which feature
Complainant’s mark and logo. The Panel
finds this to be further evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iv).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <americanairlinesvacations.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: October 4, 2007.
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