American Airlines, Inc. v. Ali Aziz
Claim Number: FA0902001247063
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 <americanairlinevacations.com>, registered with Dotregistrar.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 10, 2009; the National Arbitration Forum received a hard copy of the Complaint on February 13, 2009.
On February 11, 2009, Dotregistrar confirmed by e-mail to the National Arbitration Forum that the <americanairlinevacations.com> domain name is registered with Dotregistrar and that Respondent is the current registrant of the name. Dotregistrar has verified that Respondent is bound by the Dotregistrar 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 February 16, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 9, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 17, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <americanairlinevacations.com> domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <americanairlinevacations.com> domain name.
3. Respondent registered and used the <americanairlinevacations.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Airlines, Inc., operates one of the largest air transportation and related services businesses. Complainant has registered its AMERICAN AIRLINES mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 514,294 issued August 23, 1949). Complainant has also registered other trademarks with the USPTO that include the AMERICAN AIRLINES mark. Complainant also owns and operates the <aa.com> and <americanairlines.com> domain.
Respondent registered the <americanairlinevacations.com> domain name on March 2, 2002, and is using the disputed domain name to resolve to a website that features a search engine and various third-party links and advertisements, some of which lead to Complainant’s competitors.
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 registration of the AMERICAN AIRLINES mark with the USPTO adequately demonstrates Complainant’s rights in the mark under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)”).
domain name contains Complainant’s AMERICAN AIRLINES mark while omitting the
last “s,” adding the generic and descriptive term “vacations,” and adding the
generic top-level domain “.com.” The
Panel notes that the term “vacations” fairly relates to Complainant’s provision
of airline travel services. Moreover,
the removal of one letter and the addition of a gTLD are not sufficient to
differentiate the disputed domain name from the mark. Therefore, the Panel finds that the disputed
domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Jerry Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and legitimate interests in the disputed domain name. Because Complainant has set forth a sufficient prima facie case, Respondent bears the burden of demonstrating that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See 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); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”).
Because Respondent has failed to submit a response in this proceeding, the evidence in the record is therefore entirely drawn from Complainant’s Complaint. Complainant has denied any authorization on behalf of Respondent to use the AMERICAN AIRLINES mark in any form. What little information the Panel can scrutinize regarding Respondent as it relates to the disputed domain name is entirely within the registrant listing in the WHOIS domain name registration information. However, that listing describes the registrant as “Ali Aziz.” The Panel therefore finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). 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 Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent is using the disputed domain name to resolve to a website that includes a search engine and click-through links. The Panel presumes this activity was undertaken to acquire commercial benefit via click-through referral fees. The Panel finds that this does not constitute 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 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 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 Policy ¶ 4(a)(ii) has been satisfied.
Complainant claims that Respondent has been the respondent
in prior UDRP proceedings in which the disputed domain names were transferred
from Respondent to the respective complainants in those cases. See
Cingular Wireless II, LLC v. Ali Aziz, FA 892865 (Nat. Arb. Forum Mar. 7,
2007); see also La Quinta Worldwide, LLC.
v. Ali Aziz, D2008-1389 (WIPO Nov. 5, 2008). The Panel finds that Respondent has engaged
in a pattern bad faith registration and use under Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v.
The Panel finds that Respondent’s use of the corresponding website and disputed domain name to host competitive third-party advertisements constitutes disruption of Complainant’s business, and therefore evidences Respondent’s bad faith registration and use under Policy ¶ 4(b)(iii). See Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (defining “competitor” as “one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant claims that Respondent has created a likelihood
of confusion as to Complainant’s association or sponsorship of the disputed
domain names for commercial gain due to the confusingly similar disputed domain
name and corresponding website. The
Panel agrees, and finds that Respondent has engaged in bad faith registration
and use under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum
June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv)
where the respondent was diverting Internet users searching for the complainant
to its own website and likely profiting); see
also Asbury Auto. Group, Inc. v.
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <americanairlinevacations.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: March 30, 2009
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