Continental Airlines Inc. v. Travel Reservations Network
Claim Number: FA0802001145892
Complainant is Continental Airlines Inc. (“Complainant”), represented by Michael
C. Henning, of 15th Floor,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <continental-airline.com>, registered with Intercosmos Media Group.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 15, 2008; the National Arbitration Forum received a hard copy of the Complaint on February 19, 2008.
On February 15, 2008, Intercosmos Media Group confirmed by e-mail to the National Arbitration Forum that the <continental-airline.com> domain name is registered with Intercosmos Media Group and that Respondent is the current registrant of the name. Intercosmos Media Group has verified that Respondent is bound by the Intercosmos Media Group 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 February 21, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 12, 2008 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@continental-airline.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 18, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant is the world’s fifth largest airline and carries approximately 67 million passengers per year.
Complainant registered the service mark CONTINENTAL AIRLINES with the United States Patent and Trademark Office (“USPTO”) on October 26, 1999 (Reg. No. 2,288,901).
Complainant has used the CONTINENTAL AIRLINES mark since 1937, and currently uses this mark in connection with all of its businesses throughout the world.
Respondent registered the <continental-airline.com> domain name on August 19, 2000.
Respondent is not commonly known by the disputed domain name.
The disputed domain name resolves to <lowest-airfare.com>, a commercial website that, for Respondent’s benefit, searches for low airfares on multiple airlines, including Complainant and several of its competitors.
Respondent has been subject to at least three other UDRP complaints, and in each case has been ordered to transfer a disputed domain name or names to a complainant.
Respondent’s <continental-airline.com> domain name is confusingly similar to Complainant’s CONTINENTAL AIRLINES mark.
Respondent does not have any rights or legitimate interests in the <continental-airline.com> domain name.
Respondent registered and uses the disputed <continental-airline.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a 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 same domain name was registered and is being used by Respondent in bad faith.
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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the CONTINENTAL
AIRLINES mark for purposes of Policy ¶ 4(a)(i) by
means of its registration with the USPTO. See Innomed
Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004): “Registration
of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.” See also Vivendi Universal Games v. XBNetVentures Inc., FA
198803 (Nat. Arb. Forum Nov. 11, 2003): “Complainant's federal trademark
registrations establish Complainant's rights in the BLIZZARD mark.”
Complainant contends that Respondent’s <continental-airline.com> domain name
is confusingly similar to its CONTINENTAL AIRLINES mark. The <continental-airline.com>
domain name differs from Complainant’s mark in three ways: (1) a hyphen has
been added; (2) the letter “s” has been removed from the term “airlines;” and
(3) the generic top-level domain (“gTLD”) “.com” has been added. These changes do not sufficiently distinguish
Respondent’s disputed domain name from Complainant’s mark pursuant to Policy ¶
4(a)(i). See Health Devices Corp. v.
The addition of a top-level domain is irrelevant when establishing
whether or not a mark is identical or confusingly similar, because top-level
domains are a required element of every domain name.
The Panel therefore finds
that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks rights to and legitimate interests in the <continental-airline.com> domain name. Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case against Respondent, at which point the burden shifts to Respondent to show evidence that it does have rights to or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once a complainant asserts that a respondent has no rights or legitimate interests with respect to a domain, the burden shifts to that respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Complainant has made out a prima facie case pursuant to Policy ¶ 4(a)(ii). Respondent , for its part, has failed to answer the Complaint. We are therefore free to find for Complainant under this head of the Policy. 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’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).
We will nonetheless examine the record to determine if there is any basis for concluding that Respondent has any rights to or interests in the disputed domain name within the contemplation of Policy ¶ 4(c).
In this connection, we first note that there is no evidence before us to indicate that Respondent has ever been commonly known by the <continental-airline.com> domain name. Indeed, the pertinent WHOIS record lists Respondent as “Travel Reservations Network.” Respondent having failed to present any evidence to the contrary, we conclude that Respondent is not commonly known as the disputed domain name within the meaning of Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating that the fact that “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” is a factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003): “Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.” See also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).
We also observe that Respondent does not deny the allegation
that it uses the disputed domain name to direct Internet visitors to its website,
<lowest-airfare.com>, where it offers searches for low airfares,
including fares from Continental Airlines and several of its competitors. This
use of the domain name <continental-airline.com>
is neither a bona fide offering of
goods or services under Policy ¶ 4(c)(i) nor a legitimate non-commercial or
fair use under Policy ¶ 4(c)(iii). See Compaq
Info. Techs. Group v Jones, FA 99091 (Nat. Arb. Forum Oct. 4,
2001) (finding that a respondent had no rights or legitimate interests in a
domain name that it used to redirect Internet users to a commercial website as
part of that website’s affiliate program, where the website contained banner
ads as well as links to offers for free merchandise, including merchandise from
a complainant's competitor); see also Pitney
Bowes Inc. v. Ostanik, D2000-1611 (WIPO Jan. 24, 2001) (finding no rights
or legitimate interests in the <pitneybowe.com> domain name where a
respondent purports to resell original Pitney Bowes equipment on its website,
as well as goods of competitors of a complainant).
The Panel thus finds
that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends, and Respondent does not deny, that Respondent attracts Internet users to its website by virtue of the similarity between Complainant’s CONTINENTAL AIRLINES mark and the <continental-airline.com> domain name, that this results in a commercial benefit to Respondent, and that this is evidence of bad faith registration and use of the domain pursuant to Policy ¶ 4(b)(iv). We agree. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that a respondent’s use of the <saflock.com> domain name to offer goods competing with a complainant’s illustrates that respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv)).
That Respondent uses the <continental-airline.com> domain name to link to a website that
sells services competing with the business of Complainant is also evidence of
registration and use in bad faith pursuant to Policy ¶ 4(b)(iii). See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003): “Respondent registered and used the domain name in
bad faith, pursuant to Policy ¶ 4(b)(iii), because it
is operating on behalf of a competitor of Complainant . . . .” See also Lubbock Radio Paging v. Venture
Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23, 2000) (concluding that
domain names were registered and used in bad faith where a respondent and a
complainant were in the same line of business in the same market area).
Finally, we take cognizance of the fact that, in at least three previous UDRP cases, Respondent has been ordered to transfer the domain names in dispute in those cases to various complainants. See Radisson Hotels Int’l, Inc. v. Stillekens d/b/a Travel Reservations Network, FA 570293 (Nat. Arb. Forum Nov. 18, 2005) (transferring <radisson-hotels.com> from Respondent TRN to a trademark holder); see also Am. W. Airlines v. Travel Reservations Network, FA 146222 (Nat. Arb. Forum Mar. 26, 2003) (transferring <america-west-airlines.com> and <america-west-airline.com> from Respondent TRN to a trademark holder); further see Sw. Airlines Co. v. TRN, D2002-0893 (WIPO Nov. 18, 2002) (transferring <southwest-airline.com> from Respondent TRN to a trademark holder). This pattern of behavior is evidence that Respondent registered the <continental-airline.com> domain name to prevent Complainant from reflecting its CONTINENTAL AIRLINES mark in the domain name pursuant to Policy ¶ 4(b)(ii). See Sony Kabushiki Kaisha v. Anderson, FA 198809 (Nat. Arb. Forum Nov. 20, 2003) (finding a pattern of registering domain names in bad faith pursuant to Policy ¶ 4(b)(ii) when a respondent registered domain names incorporating well-known third party trademarks); see also Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because a domain name prevented a complainant from reflecting its mark in a domain name where a respondent had several adverse decisions against it in UDRP proceedings, which established a pattern of cybersquatting).
For these reasons, the
Panel finds that Policy ¶ 4(a)(iii) has been
satisfied.
Complainant having established all three elements required to be proven under
the ICANN Policy, the Panel concludes that the relief requested
must be GRANTED.
Accordingly, it is Ordered that the <continental-airline.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 1, 2008
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