Continental Airlines Inc. v. Carolyn Reeves
Claim Number: FA0805001183179
Complainant is Continental Airlines Inc. (“Complainant”), represented by Michael
C. Henning, of Continental Airlines, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <continentalaircareers.com>, registered with Enom.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 1, 2008; the National Arbitration Forum received a hard copy of the Complaint on May 2, 2008.
On May 1, 2008, Enom confirmed by e-mail to the National Arbitration Forum that the <continentalaircareers.com> domain name is registered with Enom and that Respondent is the current registrant of the name. Enom has verified that Respondent is bound by the Enom 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 May
8, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
May 28, 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@continentalaircareers.com
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 2, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
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 <continentalaircareers.com> domain name is confusingly similar to Complainant’s CONTINENTAL AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <continentalaircareers.com> domain name.
3. Respondent registered and used the <continentalaircareers.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Continental Airlines, Inc., is the fifth largest airline transportation company in the world carrying approximately 69 million passengers per year. Complainant uses the CONTINENTAL AIRLINES mark in connection with the sale and service of transporting customers throughout the world on airplanes. Complainant owns numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the CONTINENTAL AIRLINES mark (i.e. Reg. No. 2,288,901 issued October 26, 1999).
Respondent registered the <continentalaircareers.com> domain name on April 2, 2008. Respondent’s disputed domain name resolves to a website displaying Complainant’s marks and passes itself off as Complainant’s employment website in order to obtain personal information. In addition, Respondent, who identifies as “Carolyn Reeves,” and claims to be in the human resources department of Complainant’s company has been using the e-mail address “carolyn.reeves@continentalaircareers.com” to contact individuals and ask them to fill out a fraudulent employment application containing Complainant’s marks.
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, and thus has established rights to the mark pursuant to Policy
¶ 4(a)(i). See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb.
Forum Sept. 16, 2002) (“Under
Complainant asserts that Respondent’s <continentalaircareers.com> domain name is confusingly
similar to Complainant’s CONTINENTAL AIRLINES mark pursuant to Policy ¶
4(a)(i). Respondent’s disputed domain
name contains an abbreviated version of Complainant’s mark, adds the generic
term “careers,” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that an abbreviated version
of a complainant’s mark is confusingly similar to the complainant’s mark
pursuant to Policy ¶ 4(a)(i). See Modern Props, Inc. v.
Wallis, FA 152458 (Nat. Arb. Forum June 2, 2003) (“Notwithstanding the
analysis by Respondent, ‘modprops’ is a contraction or shorthand for ‘Modern
Props.’ ‘Mod’ cononotes [sic] ‘modern’ regardless of any other dictionary
meanings, so the names are substantially similar in meaning.”); see also Microsoft Corp. v. Montrose
Corp., D2000-1568 (WIPO Jan. 25, 2001) (finding the domain name
<ms-office-2000.com> to be confusingly similar even though the mark
MICROSOFT is abbreviated). In addition,
the Panel finds that the addition of the generic term “careers,” fails to
create a distinct domain name pursuant to Policy ¶ 4(a)(i). See
Westfield Corp. v. Hobbs, D2000-0227 (WIPO May 18, 2000) (finding the
<westfieldshopping.com> domain name confusingly similar because the
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <continentalaircareers.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds in this case that Complainant has established a prima facie case. 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).”); see also 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”).
Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). However, the Panel chooses to examine the evidence on record against the applicable Policy ¶ 4(c) elements before making a final determination with regards to Respondent’s rights and legitimate interests.
Complainant contends that Respondent is not commonly known
by the disputed domain name pursuant to Policy ¶ 4(c)(ii). Respondent’s WHOIS information provides no
affirmative evidence that Respondent is commonly known by the disputed domain
name. Therefore, pursuant to Policy ¶
4(c)(ii), Respondent lacks rights and legitimate interests in the disputed
domain name. See 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).
Respondent’s <continentalaircareers.com>
domain name resolves to a website that imitates Complainant’s
employment website. The Panel finds Respondent’s attempt to pass itself off as
Complainant in order to collect personal information is not a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the
domain name pursuant to Policy ¶ 4(c)(iii).
See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30,
2003) (finding that the respondent attempts to pass itself off as the
complainant online, which is blatant unauthorized use of the complainant’s mark
and is evidence that the respondent has no rights or legitimate interests in
the disputed domain name); see also Crow v. LOVEARTH.net,
FA 203208 (Nat. Arb. Forum Nov. 28, 2003) (“It is neither a bona fide offerings
[sic] of goods or services, nor an example of a legitimate noncommercial or
fair use under Policy ¶¶ 4(c)(i) & (iii) when the holder of a domain name,
confusingly similar to a registered mark, attempts to profit by passing itself
off as Complainant . . . .”).
In addition, Respondent’s use of e-mails and the <continentalaircareers.com> domain name to attempt to collect Internet users’ personal information is known as phishing. See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“‘Phishing’ involves the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit cards, passwords, social security numbers and other personal information to the ‘phishers’ who intend to use such information for fraudulent purposes.”). The Panel finds that a confusingly similar disputed domain name used for the purpose of phishing is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding that using a domain name to redirect Internet users to a website that imitated the complainant’s credit application website and attempted to fraudulently acquire personal information from the complainant’s clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <continentalaircareers.com> domain name to pass itself off as Complainant
by imitating Complainant’s official employment website and creating a
likelihood of confusion in order to obtain personal information from unknowing
Internet users for Respondent’s commercial gain. The Panel finds such use constitutes bad
faith registration and use pursuant to Policy ¶ 4(b)(iv). See
Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001)
(finding that the respondent's use of <monsantos.com> to misrepresent
itself as the complainant supported a finding of bad faith); see also Am.
Online, Inc. v. Miles, FA 105890 (Nat.
Arb. Forum May 31, 2002) (“Respondent is using the domain name at issue to
resolve to a website at which Complainant’s trademarks and logos are
prominently displayed. Respondent has
done this with full knowledge of Complainant’s business and trademarks. The
Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv)
of the Policy.”).
In addition, the Panel finds that
Respondent’s use of the <continentalaircareers.com> domain name in association
with fraudulent e-mails to participate in phishing activities is further
evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See
Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May
3, 2004) (finding that using a domain name that “is confusingly similar to
Complainant’s mark, redirects Internet users to a website that imitates
Complainant’s billing website, and is used to fraudulently acquire personal
information from Complainant’s clients” is evidence of bad faith registration
and use); see also Capital One
Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad
faith registration and use because the respondent used the domain name to
redirect Internet users to a website that imitated the complainant’s website
and to fraudulently acquire personal information from the complainant’s
clients).
The Panel finds 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 <continentalaircareers.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: June 16, 2008
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