Compania Mexicana de Aviacion, S.A. de C.V. d/b/a Mexicana Airlines v. Bladimir Boyiko
Claim Number: FA0805001195963
Complainant is Compania Mexicana de Aviacion, S.A. de C.V. d/b/a Mexicana
Airlines (“Complainant”), represented
by Edward A. Schlatter of Knobbe Martens Olson & Bear LLP, California, USA. Respondent is Bladimir Boyiko (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mexicanaairlines.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 May 30, 2008; the National Arbitration Forum received a hard copy of the Complaint May 30, 2008.
On May 30, 2008, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <mexicanaairlines.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").
5, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 25, 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 email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 2, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit 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, <mexicanaairlines.com>, is confusingly similar to Complainant’s MEXICANA mark.
2. Respondent has no rights to or legitimate interests in the <mexicanaairlines.com> domain name.
3. Respondent registered and used the <mexicanaairlines.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has been operating under the MEXICANA mark since
at least 1924. Complainant is the
leading transportation company between the
Respondent registered the <mexicanaairlines.com> domain name September 13, 2001, and currently it resolves to a website featuring an advertisement for and link to an online casino.
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."
With no response submitted by Respondent, the Panel is free to decide this administrative proceeding pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and may presume that Complainant’s allegations are true, unless the evidence is clearly contradictory. The Panel may draw such inferences as it considers appropriate under the authority of paragraph 14(b) of the Rules. See Euromarket Designs, Inc. v. Domain For Sale VMI, D2000-1195 (WIPO Oct. 26, 2000) (“In the absence of direct evidence, the complainant and the panel must resort to reasonable inferences from whatever evidence is in the record. In addition . . . Paragraph 14(b) of the Rules [authorizes] a panel to draw such inferences from respondent’s failure to respond ‘as it considers appropriate.’”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“Respondent has failed to come forward with a Response. Therefore, the Panel is permitted to make reasonable inferences in favor of Complainant and accept Complainant’s allegations as true.”).
Under Paragraph 4(a) of the Policy, Complainant is required to prove each of the following three elements before an order cancelling or transferring a domain name may be ordered:
(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 in the MEXICANA mark through registration with the USPTO pursuant to Policy ¶ 4(a)(i). 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 Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
The <mexicanaairlines.com> domain name contains Complainant’s MEXICANA mark in its entirety followed by the word “airlines,” which specifically describes the business that Complainant conducts under the MEXICANA mark. It is well-established that the inclusion of a generic term, which accurately describes the services or products offered under a mark, does not distinguish a disputed domain name from that mark. The <mexicanaairlines.com> domain name also includes the generic top-level domain (“gTLD”) “.com.” This is, however, irrelevant to a Policy ¶ 4(a)(i) analysis. The Panel finds that the disputed domain name is confusingly similar to Complainant’s MEXICANA mark pursuant to Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the addition of a gTLD, whether it be “.com,” “.net,” “.biz,” or “.org,” is irrelevant to a Policy ¶ 4(a)(i) analysis); 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 find that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Under a Policy ¶ 4(a)(ii) analysis,
Complainant must first make a prima facie
showing that Respondent has no rights or legitimate interests in the <mexicanaairlines.com> domain
name. See VeriSign Inc. v. VeneSign
Since no response has been filed to this Complaint, the Panel may presume that Respondent has no rights or legitimate interests in the disputed domain name. Nonetheless, the Panel considers all of the elements listed under Policy ¶ 4(c). See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because Respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
The disputed domain name’s WHOIS page lists the name “Bladimir Boyiko” and an address in
The disputed domain name here resolves to a website featuring an advertisement for and a link to an online casino. Respondent presumably commercially benefits from each Internet user who views or clicks on the advertisement or link. Accordingly, the Panel finds that this does not constitute 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 Imation Corp. v. Streut, FA 125759 (Nat. Arb. Forum Nov. 8, 2002) (finding no rights or legitimate interest under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where the respondent used the disputed domain name to redirect Internet users to an online casino); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
domain name resolves to a website displaying a sole advertisement and link for
an online casino. The Panel presumes
that Respondent is commercially benefiting from such use. As a result, the Panel finds that Respondent
registered and is using the disputed domain name in bad faith pursuant to
Policy ¶ 4(b)(iv).
See Encyclopaedia Britannica Inc.
v. Shedon.com, D2000-0753 (WIPO Sept. 6, 2000) (finding that the respondent
violated Policy ¶ 4(b)(iv) by using the domain name
<britannnica.com> to hyperlink to a gambling site); see also
The Panel finds that Complainant satisfied the elements of ICANN 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 <mexicanaairlines.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: July 9, 2008.
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