American Airlines, Inc. v. DomainSales- www.DNDots.com
Claim Number: FA0812001239503
Complainant is American
Airlines, Inc. (“Complainant”), represented by Kristin Jordan Harkins, of Conley Rose, P.C.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aatravels.com>, registered with Enom, Inc.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On December 23, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 12, 2009 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.
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 <aatravels.com> domain name is confusingly similar to Complainant’s AA mark.
2. Respondent does not have any rights or legitimate interests in the <aatravels.com> domain name.
3. Respondent registered and used the <aatravels.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Airlines, Inc., operates in the air
transportation and related-services industry, and is one of the world’s largest
airlines. Complainant has registered its
AA mark several times with the United States Patent and Trademark Office (“USPTO”)
(i.e. Reg. No. 514,292 issued
Respondent registered the disputed <aatravels.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.
The Panel finds that Complainant’s longstanding
registrations of the AA mark with the USPTO sufficiently establish
Complainant’s rights in the mark under Policy ¶ 4(a)(i). See 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)); see also Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum
Respondent’s disputed <aatravels.com> domain name includes Complainant’s entire AA mark with the following alterations: (1) the descriptive word “travels” has been added; and (2) the generic top-level domain “.com” has been included. The Panel finds that the addition of a top-level domain is immaterial under Policy ¶ 4(a)(i) as such an element is required of every domain. Moreover, previous panels have held that the addition of a descriptive word that relates to a complainant’s business creates no meaningful distinction, if not actually heighten the resulting confusing similarity. In this case, “travels” aptly describes Complainant’s airline travel services. Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Miller Brewing Co. v. Domain Active Pty. Ltd., FA 243606 (Nat. Arb. Forum Apr. 23, 2004) (finding that the <millerbeers.com> domain name was confusingly similar to the complainant’s MILLER mark, because “[t]he addition of a descriptive term that describes Complainant’s business to Complainant’s registered mark, does not remove the domain from the realm of confusing similarity with regard to Policy ¶ 4(a)(i).”); see also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and
legitimate interests in the disputed
domain name. 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 may presume that Respondent lacks rights and
legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).
However, the Panel in its discretion chooses to examine the record to
determine whether Respondent has any rights or legitimate interests
pursuant to the factors outlined in Policy ¶ 4(c). See
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.”);
see also Hanna-Barbera Prods., Inc. v.
FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must
first make a prima facie case that the respondent lacks rights and
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before
the burden shifts to the respondent to show that it does have rights or
legitimate interests in a domain name); see
also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum
Complainant alleges that: (1) Respondent is not commonly known by the disputed domain name; and (2) Respondent is not licensed or otherwise permitted to use Complainant’s AA mark in any domain name. Respondent has failed to respond to the instant Complaint, and thus has not provided any evidence to contradict these assertions within the record. The Panel does note that the WHOIS information lists Respondent as “DomainSales- www.DNDots.com,” which serves to bolster Complainant’s assertions. Therefore, the Panel finds that Respondent lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the <shoredurometer.com> and <shoredurometers.com> domain names because the WHOIS information listed Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't as the registrant of the disputed domain names and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent’s disputed domain name resolves to a website that
displays third-party advertisements and links, as well as a search engine. These links and potential search engine
results lead Internet users to Complainant’s direct competitors. The Panel infers that Respondent acquires
referral fees for the placement of these links.
Therefore, Respondent’s use of the confusingly similar disputed domain
name for commercial gain via a click-through venture promoting Complainant’s
competitors fails as 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
Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007)
(holding that the operation of a pay-per-click website at a confusingly similar
domain name was not 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
also Skyhawke Techns., LLC v.
Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds it readily apparent that the provision of
advertisements and links for Complainant’s competitors on the disputed domain
name’s resolving website disrupts Complainant’s business operations. The Panel therefore finds that Respondent’s
diversion of Internet users to Complainant’s competitors through this activity
evidences Respondent’s bad faith registration and use under Policy ¶ 4(b)(iii). See
David Hall Rare Coins v.
The Panel also finds that Respondent has intentionally
created a likelihood of confusion as to Complainant’s affiliation and
sponsorship of the disputed domain name and corresponding website. Respondent has accomplished this activity in
the pursuit of commercial gain via the confusingly similar disputed domain
name. Therefore, the Panel finds that
Respondent registered and is using the disputed domain name in bad faith
pursuant to Policy ¶ 4(b)(iv). See
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 <aatravels.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: January 28, 2009
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