Delta Corporate Identity, Inc. v. Ameriasa
Claim Number: FA0206000114657
Complainant is Delta Corporate Identity, Inc., Atlanta, GA, USA (“Complainant”) represented by Paul D. McGrady, of Ladas & Parry. Respondent is Ameriasa, Poppel, Ravels, BELGIUM (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delta-airline-reservations.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on June 20, 2002; the Forum received a hard copy of the Complaint on June 21, 2002.
On June 21, 2002, Intercosmos Media Group confirmed by e-mail to the Forum that the domain name <delta-airline-reservations.com> 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 June 24, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 15, 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 July 22, 2002, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <delta-airline-reservations.com> domain name is confusingly similar to Complainant's DELTA mark.
Respondent has no rights or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name in bad faith.
Respondent failed to submit a Response.
Complainant is the owner of numerous marks that incorporate the word DELTA. Complainant has registered its marks with the United States Patent and Trademark Office, as well as with authorized institutions in France, Argentina, Australia, Canada, and Costa Rica. Complainant serves 205 U.S. cities in 45 States and the District of Columbia with air travel services. Complainant also serves 44 cities in 28 foreign countries. Complainant is the largest U.S. airline in terms of aircraft departures and passengers enplaned, and the third largest as measured by operating and revenue passenger miles flown. Complainant is also the U.S. leader in transatlantic flights, offering the most daily departures. Complainant spends millions on advertising worldwide, and draws annual revenues near $15 billion. Complainant has invested many millions into developing the goodwill and consumer recognition of its famous DELTA marks.
Respondent registered the disputed domain name on May 22, 2002. Respondent is not a licensee of Complainant. Complainant’s investigation has found no evidence that Respondent has a business or trademark for DELTA anywhere in the world. Respondent is a known cybersquatter, and has registered other domain names that infringe upon the famous marks of others involved in the travel industry such as: <hertz-car-rental.net>, <enterprise-car-rental.org>, <dollar-car-rental.net>, and <avis-car-rental.net>.
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 established that it has rights in its DELTA mark through continuous use and multiple registrations. Furthermore, Respondent’s <delta-airline-reservations.com> domain name is confusingly similar to Complainant’s mark because it incorporates Complainant’s entire mark and merely adds terms that describe Complainant’s business separated by hyphens. It has been determined that the addition of terms that describe Complainant’s business to Complainant’s mark in a domain name do not create a distinct mark capable of overcoming a claim of confusing similarity. See Space Imaging LLC v. Brownwell, 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); see also 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). Also, placing hyphens in-between the words of a domain name does not create a distinct mark and therefore does not overcome a claim of confusing similarity. See Teleplace, Inc. v. De Oliveira, FA 95835 (Nat. Arb. Forum Dec. 4, 2000) (finding that the domain names <teleplace.com>, <tele-place.com>, and <theteleplace.com> are confusingly similar to Complainant’s TELEPLACE trademark); see also Nintendo Of Am. Inc. v. This Domain Is For Sale, D2000-1197 (WIPO Nov. 1, 2000) (finding <game-boy.com> identical and confusingly similar the Complainant’s GAME BOY mark, even though the domain name is a combination of two descriptive words divided by a hyphen).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Respondent has failed to come forward with a Response and therefore it is presumed that Respondent has no rights or legitimate 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).
Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant. See 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”).
Based on the fame of Complainant's DELTA mark it would be very difficult for Respondent to show that it had rights and legitimate interests in the disputed domain name. Any use by Respondent of the <delta-airline-reservation.com> domain name, confusingly similar to Complainant's famous mark, would be an opportunistic attempt to attract customers via Complainant's famous mark and therefore not considered to be a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Nike, Inc. v. B. B. de Boer, D2000-1397 (WIPO Dec. 21, 2000) (finding no rights or legitimate interests where one “would be hard pressed to find a person who may show a right or legitimate interest” in a domain name containing Complainant's distinct and famous NIKE trademark); see also State Farm Mut. Auto. Ins. Co. v. LaFaive, FA 95407 (Nat. Arb. Forum Sept. 27, 2000) (finding that “unauthorized providing of information and services under a mark owned by a third party cannot be said to be the bona fide offering of goods or services”).
There is no evidence on the record, and Respondent has not come forward to establish that it is commonly known by the <delta-airline-reservations.com> domain name pursuant to Policy ¶ 4(c)(ii). See Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (finding that Respondent has failed to demonstrate any rights or legitimate interests in the <twilight-zone.net> domain name since Complainant had been using the TWILIGHT ZONE mark since 1959).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Based on the fame of Complainant’s mark it can be inferred that Respondent was on notice as to Complainant’s rights in the mark when it registered the <delta-airline-reservations.com> domain name. Registration of an infringing domain name, despite notice of Complainant’s rights, is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii). See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration); see also Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18. 2000) (finding that Respondent had actual and constructive knowledge of Complainant’s EXXON mark given the world-wide prominence of the mark and thus Respondent registered the domain name in bad faith).
The <delta-airlines-reservations.com> domain name is confusingly similar to Complainant's mark and the Internet user will likely believe that there is an affiliation between Respondent and Complainant. Registration of the confusingly similar <delta-airline-reservations.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv). See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).
Respondent has registered domain names that infringe upon the trademarks of other entities and therefore by registering the <delta-airline-reservations.com> domain name Respondent continues to engage in a pattern of behavior that is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(ii). See Armstrong Holdings, Inc. v. JAZ Assoc., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the Respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names which infringe upon others’ famous and registered trademarks); see also Nabisco Brands Co. v. Patron Group, D2000-0032 (WIPO Feb. 23, 2000) (holding that registration of numerous domain names is one factor in determining registration and use in bad faith); see also America Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24, 2000) (finding a bad faith pattern of conduct where Respondent registered many domain names unrelated to its business which infringe on famous marks and websites).
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 the requested relief shall be hereby granted.
Accordingly, it is Ordered that the domain name <delta-airline-reservations.com> be transferred from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 30, 2002
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page