Continental Airlines, Inc. v.
Claim Number: FA0711001106528
Complainant is Continental Airlines, Inc. (“Complainant”), represented by Michael
C. Henning, of Continental Airlines, Inc., 15th Floor
HQSLG,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <continentalairlines.biz>, registered with Godaddy.com, Inc.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On November 15, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 5, 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@continentalairlines.biz by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <continentalairlines.biz> domain name is identical to Complainant’s CONTINENTAL AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <continentalairlines.biz> domain name.
3. Respondent registered and used the <continentalairlines.biz> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Continental Airlines, Inc., is the world’s fifth largest airline. Complainant has registered the CONTINENTAL AIRLINES mark in several countries, including registering with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,288,901 issued October 26, 1999).
Respondent registered <continentalairlines.biz>
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 has registered the CONTINENTAL AIRLINES mark
with the USPTO. The Panel finds that
registration with the USPTO demonstrates rights in the mark sufficient to
satisfy Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum
Complainant contends that <continentalairlines.biz> is identical to its CONTINENTAL
AIRLINES mark. Complainant asserts that
the disputed domain name incorporates its mark in its entirety, removing a
space and adding only the generic top-level domain (“gTLD”) “.biz.” The Panel finds the disputed domain name to
be identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Where Complainant makes a prima facie case under
Policy ¶ 4(a)(ii), the burden shifts to Respondent to
set forth evidence that it does possess rights to or legitimate interests in
the disputed domain name. The Panel finds that Complainant has
established a prima facie case in the
matter at hand. See Do The Hustle,
LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the
complainant has asserted that the respondent has no rights or legitimate
interests with respect to the domain name, it is incumbent on the respondent to
come forward with concrete evidence rebutting this assertion because this
information is “uniquely within the knowledge and control of the respondent”).
Respondent has failed to submit a response to the
Complaint. Therefore, the Panel is
entitled to presume that Respondent lacks all rights and legitimate interests
in the disputed domain name. See Broadcom Corp. v.
Ibecom PLC, FA 361190 (Nat. Arb. Forum
Complainant alleges that Respondent is not commonly known by
the <continentalairlines.biz> domain
name and is not authorized to use Complainant’s CONTINENTAL AIRLINES mark in
any way. According to the WHOIS information page for <continentalairlines.biz>, Respondent
registered the disputed domain name under the name “MIG Travel.” Nowhere in the record does it indicate that
Respondent is or ever was commonly known by the <continentalairlines.biz> domain name. The Panel finds that Respondent has not
established rights to or legitimate interests in the domain name in accordance
with Policy ¶ 4(c)(ii). See
Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003)
(stating “nothing in Respondent’s WHOIS information implies that Respondent is
‘commonly known by’ the disputed domain name” as one factor in determining that
Policy ¶ 4(c)(ii) does not apply); see also America
Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum
The disputed domain name, <continentalairlines.biz>,
currently resolves to a website for an airline travel reservation system which
prominently displays Complainant’s CONTINENTAL AIRLINES mark but is not
sponsored by or affiliated with Complainant.
The Panel finds this to be neither a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to
Policy ¶ 4(c)(iii). See Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly
similar to Complainant’s mark to divert Internet users to websites unrelated to
Complainant's business does not represent a bona fide offering of goods or
services under Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting
customers, who are looking for products relating to the famous SEIKO mark, to a
website unrelated to the mark is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under
Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent currently utilizes the disputed domain name, <continentalairlines.biz>, to resolve to a website for
an airline travel reservation system which prominently displays Complainant’s
CONTINENTAL AIRLINES mark but is not sponsored by or affiliated with
Complainant. The Panel finds such use to
establish that Respondent registered and is using the disputed domain name in
bad faith pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat.
Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly
similar domain name to attract Internet users to a website containing
commercial links to the websites of the complainant’s competitors represented
bad faith registration and use under Policy ¶ 4(b)(iii)); see also Disney
Enters., Inc. v. Noel, FA 198805 (Nat.
Arb. Forum
Moreover, Respondent is commercially benefiting from the confusion created with Complainant’s mark. Internet users searching for Complainant’s CONTINENTAL AIRLINES mark would easily be confused by the disputed domain name, which results in additional traffic to Respondent’s airline travel reservation system website. The Panel finds such confusion for commercial gain to be further evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also American Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”).
Complainant contends that Respondent registered and used <continentalairlines.biz> with knowledge of Complainant’s rights in the CONTINENTAL AIRLINES mark. Complainant contends that Respondent’s website prominently and repeatedly displays its CONTINENTAL AIRLINES mark while offering competing services. The Panel finds that Respondent has registered the disputed domain name with full knowledge of Complainant's business and trademarks and that this conduct is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (“[T]here is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively.”); see also eBay, Inc v. Progressive Life Awareness Network, D2001-0068 (WIPO Mar. 16, 2001) (finding bad faith pursuant to Policy ¶ 4(b)(iv) where the respondent capitalized on the fame associated with the complainant’s EBAY mark and profited from it by diverting users seeking the complainant to the respondent’s website).
Complainant contends that Respondent’s
use of a disclaimer, which states “[t]his site is not owned, operated or
endorsed by Continental Airlines, Inc.,” does not mitigate confusion as to
Complainant’s affiliation with the disputed domain name. The
Panel finds that Respondent’s use of a disclaimer does note mitigate a finding
of bad faith under Policy ¶ 4(a)(iii). See Ciccone v. Parisi, D2000-0847 (WIPO
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 <continentalairlines.biz> domain name be TRANSFERRED from Respondent to Complainant.
Dated: December 26, 2007
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum