American Airlines, Inc. v. Telecom Tech Corp. c/o Administrator Administrator
Claim Number: FA0809001224015
Complainant is American Airlines, Inc. (“Complainant”), represented by Kristin
Jordan Harkins, of Conley Rose, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <aavacatins.com>, registered with Name.Net LLC, and <aavacaations.com>, registered with Spot Domain LLC.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
On September 18, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 8, 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@aavacatins.com and postmaster@aavacaations.com 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <aavacatins.com> and <aavacaations.com> domain names are confusingly similar to Complainant’s AA and AAVACATIONS.COM marks.
2. Respondent does not have any rights or legitimate interests in the <aavacatins.com> and <aavacaations.com> domain names.
3. Respondent registered and used the <aavacatins.com> and <aavacaations.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Airlines, Inc., is one of the world’s
largest airlines, and has marketed its air transportation services to the
public under the AA mark since as early as December 1935. Complainant registered the AA mark with the
United States Patent and Trademark Office (“USPTO”) numerous times, the
earliest of which being Registration Number 514,292 issued
Complainant has also marketed its travel services under the AAVACATIONS.COM mark since as early as October 1997. Through the website resolving from the <aavacations.com> domain name, Complainant sold $170 million in travel services to over 194,000 air travelers in 2007. Complainant continues to promote its air travel and other related travel services using the AAVACATIONS.COM mark.
Respondent registered the <aavacatins.com> domain
name 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 provided evidence of its USPTO trademark
registrations for the AA mark. The Panel
finds that this evidence adequately confers rights in the AA mark to
Complainant pursuant to Policy ¶ 4(a)(i).
See Expedia, Inc. v. Emmerson,
FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark
registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA]
mark pursuant to Policy ¶ 4(a)(i).”); see
also Enter. Rent-A-Car Co. v. David Mizer Enters., Inc., FA 622122 (Nat.
Arb. Forum
In addition, the Panel finds that Complainant has established
sufficient common law rights in the AAVACATIONS.COM mark pursuant to Policy ¶
4(a)(i). Complainant’s evidence
submitted in the record clearly indicates that the mark has acquired secondary
meaning among air travel consumers in commerce.
Over 194,000 air travelers purchased plane tickets or made other travel
arrangements by accessing Complainant’s website resolving from the
<aavacations.com> domain name in 2007 alone. Complainant has continuously marketed its
vacation packages using the AAVACATIONS.COM mark since October 1997, so the
Panel confers common law rights to Complainant on this basis pursuant to Policy
¶ 4(a)(i). See Bibbero Sys., Inc. v. Tseu & Assoc., FA 94416 (Nat. Arb.
Forum May 9, 2000) (finding, while the complainant had registered the BIBBERO
SYSTEMS, INC. mark, it also had common law rights in the BIBBERO mark because
it had developed brand name recognition with the word “bibbero”); see also
For purposes of analyzing confusing similarity, it is easiest to consider the AAVACATIONS.COM mark. The disputed domain names each contain a one-letter misspelling of Complainant’s mark, which is otherwise reflected in its entirety. The overall impressions of the disputed domain names remain Complainant’s AAVACATIONS.COM mark, and the one-letter misspellings do not add any distinguishing characteristics. Therefore, the Panel finds that Respondent’s <aavacatins.com> and <aavacaations.com> domain names are each confusingly similar to Complainant’s AAVACATIONS.COM mark pursuant to Policy ¶ 4(a)(i). See Myspace, Inc. v. Kang, FA 672160 (Nat. Arb. Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity); see also Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) (finding the <intellus.com> domain name to be confusingly similar to the complainant’s INTELIUS mark because the domain name differed from the mark by one letter and was visually similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the <aavacatins.com> and <aavacaations.com> domain names. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel will examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c). See Mason Cos., Inc. v. Chan, FA 1216166 (Nat. Arb. Forum Sept. 4, 2008) (“The Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the [disputed domain] name. Thus, the burden shifts to Respondent to demonstrate that it does have such rights or interests.”); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”).
According to Complainant, Respondent is not now, nor has
ever been, commonly known by the disputed domain names. There appears to be no evidence in the record
to the contrary, including the WHOIS information identifying Respondent as
“Telecom Tech Corp. c/o Administrator Administrator.” Therefore, the Panel concludes that Respondent
is not commonly known by the disputed domain names pursuant to Policy ¶
4(c)(ii). See
Respondent’s <aavacatins.com> and <aavacaations.com> domain names each resolve to websites that display links to Complainant and its competitors’ travel services. Complainant alleges, and the Panel presumes, that Respondent earns click-through fees for each redirected Internet user. The Panel finds, consistent with a long line of case precedent, that such use of the disputed domain names constitutes neither 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 Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a confusingly similar disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors 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)).
The Panel also notes that Respondent’s one-letter
misspellings of Complainant’s AAVACATIONS.COM mark in the disputed domain names
constitute typosquatting. This provides
further evidence of Respondent’s lack of rights and legitimate interests in the
disputed domain names pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Many of the links on the website resolving from the disputed domain names
advertise the air travel services of Complainant’s competitors. This is likely to disrupt Complainant’s
business by diverting customers to the competitors’ websites. Therefore, Respondent’s registration and use
of the disputed
domain names constitutes 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) (finding that the respondent registered and used the disputed domain name
in bad faith pursuant to Policy ¶ 4(b)(iii) when the disputed domain name
resolved to a website that displayed commercial links to the websites of the
complainant’s competitors in the financial services industry); see also David Hall Rare Coins v.
Respondent’s registration and use of the disputed domain names
is also likely to confuse Internet users into believing that Complainant is
affiliated with or endorses the content advertised on Respondent’s resolving
website, especially since Complainant’s own services are also advertised. Respondent is profiting from this likelihood
of confusion and the goodwill associated with Complainant’s AA and
AAVACATIONS.COM marks, so the Panel finds that Respondent’s registered and is
using the disputed
domain names in bad faith pursuant to Policy ¶ 4(b)(iv). See AOL
LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007)
(finding that the respondent registered and used the disputed domain name in
bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially
gaining from the likelihood of confusion between the complainant’s AIM mark and
the competing instant messaging products and services advertised on the
respondent’s website that resolved from the disputed domain name);
see also Asbury Auto. Group, Inc. v.
Finally, Respondent’s practice of typosquatting is itself
evidence of Respondent’s bad faith registration and use of the disputed domain names
pursuant to Policy ¶ 4(a)(iii). See Computerized
Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003)
(finding that the respondent engaged in typosquatting, which is evidence of bad
faith registration and use under Policy ¶ 4(a)(iii)); see also Nextel Commc’ns
Inc. v. Geer, FA 477183 (Nat.
Arb. Forum July 15, 2005) (finding that the respondent’s registration and use
of the <nextell.com> domain name was in bad faith because the domain name
epitomized typosquatting in its purest form).
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 <aavacatins.com> and <aavacaations.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: October 29, 2008
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