Northwest Airlines, Inc. v. Amjad Kausar
Claim Number: FA0209000124851
Complainant is Northwest Airlines, Inc., St. Paul, MN, USA (“Complainant”) represented by Todd A. Green, of Turner Green Afraisiabi & Arledge LLP. Respondent is Amjad Kausar, Karachi, PAKISTAN (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwnwa.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.
Hon. Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on September 9, 2002; the Forum received a hard copy of the Complaint on September 23, 2002.
On September 10, 2002, Enom, Inc. confirmed by e-mail to the Forum that the domain name <wwwnwa.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 September 24, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of October 14, 2002 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, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On October 29, 2002 pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the 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 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.
The <wwwnwa.com> domain name is confusingly similar to Complainant's NWA mark.
Respondent has no rights or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name in bad faith.
Respondent failed to submit a Response in this proceeding.
Complainant holds a trademark registration with the United States Patent and Trademark Office for NWA (Reg. No. 2,575,777) related to air transportation services, travel related services. Complainant also holds a trademark for NWA.COM with the United States Patent and Trademark Office (Reg. No. 2,271,908) in relation to providing travel information by means of a global computer network.
Complainant’s main website for its international airline business is located at <nwa.com>. Customers can use this website to search for flights, make reservations, and purchase airline tickets over the Internet.
Respondent registered the disputed domain name on August 30, 2000. Respondent is using the disputed domain name in order to redirect Internet users to <www1.vipfares.com>. This website offers travel-related services similar to those offered by Complainant.
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 the 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.
Paragraph 4(a) of the Policy requires that the 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.
Identical and/or Confusingly Similar
Complainant has established that it has rights in the NWA mark through registration with the United States Patent and Trademark Office. Furthermore, Respondent’s <wwwnwa.com> domain name is confusingly similar to Complainant’s mark because it merely places the string of letters “www” before Complainant’s mark. The placement of “www” before Complainant’s mark capitalizes on a common typing error. Internet users who type Complainant’s mark into the URL but do not type the period between “www” and NWA will be unwillingly diverted to Respondent’s website. The addition of the “www” before Complainant’s mark does not therefore create a distinct characteristic capable of overcoming a Policy ¶ 4(a)(i) confusingly similar analysis. See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
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. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence); 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”).
Furthermore, based on Respondent’s failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests in respect of the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interest in the domain name because Respondent never submitted a Response nor provided the Panel with evidence to suggest otherwise).
Respondent is using the disputed domain name in order to divert Internet users to <www1.vipfares.com> a website that features travel services similar to Complainant’s travel services. The use of a confusingly similar domain name in order to divert Internet users interested in Complainant’s services to a competing website is not a use in connection with 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 N. Coast Med., Inc. v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no bona fide use where Respondent used the domain name to divert Internet users to its competing website); see also Big Dog Holdings, Inc. v. Day, FA 93554 (Nat. Arb. Forum Mar. 9, 2000) (finding no legitimate use when Respondent was diverting consumers to its own website by using Complainant’s trademarks).
Respondent has not come forward with any proof and there is no evidence on record to establish that Respondent is commonly known as WWWNWA or <wwwnwa.com>. Therefore, Respondent has failed to establish that it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
It can be inferred that Respondent had knowledge of Complainant’s NWA mark when it registered the disputed domain name because the domain name is a misspelling of Complainant’s mark. Registration of a domain name, despite knowledge of Complainant’s rights, is evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii). See Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. Feb. 11, 2002) (finding that "[w]here an alleged infringer chooses a mark he knows to be similar to another, one can infer an intent to confuse"); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration).
Respondent is engaged in a practice called “typosquatting.” This practice diverts Internet users who misspell Complainant’s mark to a website sponsored by Respondent for Respondent’s commercial gain. This practice of “typosquatting” has been recognized as a bad faith use of a domain name under the UDRP pursuant to Policy ¶ 4(b)(iv). See e.g. AltaVista Co. v. Stoneybrook, D2000-0886 (WIPO Oct. 26, 2000) (awarding <wwwalavista.com>, among other misspellings of altavista.com, to Complainant); Dow Jones & Co. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (awarding domain names <wwwdowjones.com>, <wwwwsj.com>, <wwwbarrons.com> and <wwwbarronsmag.com> to Complainants).
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 the requested relief shall be hereby granted.
Accordingly, it is Ordered that the domain name <wwwnwa.com> be transferred from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: October 31, 2002
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