American Airlines, Inc. v. Frantiska Tuma c/o Venrad Esofttopia
Claim Number: FA0810001230518
Complainant is American Airlines, Inc. (“Complainant”), represented by Kristin Jordan Harkins, of Conley Rose, P.C., Texas, USA. Respondent is Frantiska Tuma c/o Venrad Esofttopia (“Respondent”), Czech Republic.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <american-air-lines.com>, registered with Todaynic.com, Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 22, 2008; the National Arbitration Forum received a hard copy of the Complaint on October 24, 2008.
The National Arbitration Forum attempted to verify that the <american-air-lines.com> domain name was registered with Todaynic.com, Inc. and that Respondent was the current registrant of that domain name. Todaynic.com, Inc. however, did not respond to multiple contact attempts from the National Arbitration Forum. The National Arbitration Forum then contacted ICANN regarding Todaynic.com, Inc.’s lack of response to the verification request, and notified ICANN that it would be proceeding without verification. The National Arbitration Forum commenced the case on November 7, 2008.
On November 7, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 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@american-air-lines.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 4, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 <american-air-lines.com> domain name is identical to Complainant’s AMERICAN AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <american-air-lines.com> domain name.
3. Respondent registered and used the <american-air-lines.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Airlines, Inc., is engaged in the business of air transportation and related services, and is one of the world’s largest airlines. Complainant has registered its AMERICAN AIRLINES mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 514,294 issued Aug. 23, 1949). Complainant has also registered numerous other trademarks with the USPTO that include the AMERICAN AIRLINES mark in some form. Complainant also owns the <aa.com> and <americanairlines.com> domain names in connection with its operations.
Respondent registered the disputed <american-air-lines.com> domain name on June 15, 2008, and is currently using the disputed domain name to resolve to a website that purports to advertise “recommended” travel reservation websites for purchasing Complainant’s airline tickets. This resolving website also contains third-party links that, while purporting to lead to third-parties, resolve to the same parked advertising website.
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.
The Panel finds that Complainant’s long-standing registration of the AMERICAN AIRLINES mark with the USPTO is sufficient to confer upon Complainant adequate rights for standing under Policy ¶ 4(a)(i). See Reebok Int’l Ltd. v. Santos, FA 565685 (Nat. Arb. Forum Dec. 21, 2005) (“Complainant owns a United States Patent and Trademark Office (‘USPTO’) registration issued September 5, 2000 for the RBK mark. This trademark registration is adequate to establish rights pursuant to Policy ¶ 4(a)(i).”); see also Ameridream, Inc. v. Russell, FA 677782 (Nat. Arb. Forum May 24, 2006) (holding that with the complainant’s registration of the AMERIDREAM mark with the USPTO, the complainant had established rights in the mark pursuant to Policy ¶ 4(a)(i)).
The disputed <american-air-lines.com> domain name contains Complainant’s AMERICAN AIRLINES mark and presents the following alterations: (1) substituting the space in-between the words of the mark with a hyphen; (2) adding a hyphen in-between “air” and “lines;” and (3) adding the generic top-level domain “.com.” The Panel notes that these uses of punctuation and a generic top-level domain are considered irrelevant under the Policy. In Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000), the panel held that “the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark.” Moreover, the panel in Abt Elecs., Inc. v. Ricks, FA 904239 (Nat. Arb. Forum Mar. 27, 2007) found that “Respondent’s <abt.com> domain name is identical to Complainant’s ABT mark since addition of a generic top-level domain (“gTLD”) is irrelevant when conducting a Policy ¶ 4(a)(i) analysis.” The Panel therefore aligns itself with this precedent, and finds that the <american-air-lines.com> domain name is identical to Complainant’s AMERICAN AIRLINES mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Complainant is required to support this allegation in order to show a sufficient prima facie case. The Panel finds that Complainant has met this burden, and Respondent is therefore compelled to prove its rights and legitimate interests in the disputed domain name. 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 Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent failed to tender a response in this case. The Panel notes that the WHOIS information lists the registrant as “Frantiska Tuma c/o Venrad Esofttopia.” There is no semblance of similarity between this listing and the disputed domain name. Complainant expressly denies any authorization or licensing on behalf of Respondent to use Complainant’s marks in any form. Based on the record provided, the Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding that the respondent was not commonly known by the <thirteen.com> domain name based on all evidence in the record, and the respondent did not counter this argument in its response); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Respondent’s disputed domain name resolves to a website which leads Internet users to “recommended” travel websites that claim to offer deals on Complainant’s airline tickets, and offers third-party links to Complainant’s direct competitors, presumably in return for referral fees. The Panel therefore finds that this fails to constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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 also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The disputed domain name resolves to a website that redirects Internet users to Complainant’s products or the airline tickets of Complainant’s competitors, a disruption to Complainant’s business. The Panel therefore finds that that Respondent registered and used the disputed domain name in bad faith in violation of Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business).
The Panel finds that Respondent registered and used the
disputed domain name to intentionally attract Internet users for commercial
gain, based on the likelihood of confusion as to the source and endorsement of
the disputed domain name and resolving website.
The Panel finds that this is evidence of Respondent’s bad faith
registration and use under Policy ¶ 4(b)(iv).
See Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum
Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to
maintain a pay-per-click site displaying links unrelated to the complainant and
to generate click-through revenue suggested bad faith registration and use
under Policy ¶ 4(b)(iv)); see also Williams-Sonoma, Inc. v. Fees, FA 937704
(Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a confusingly similar
domain name to display links to various third-party websites demonstrated bad
faith registration and use pursuant to Policy ¶ 4(b)(iv)).
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 <american-air-lines.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 16, 2008
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