AMR Corporation v. Jessica Weisman
Claim Number: FA0902001248532
Complainant is AMR
Corporation (“Complainant”), represented by Kristin J. Harkins, of Conley Rose, P.C.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <amrcareers.com>, registered with Enom, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 19, 2009; the National Arbitration Forum received a hard copy of the Complaint on February 23, 2009.
On February 20, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <amrcareers.com> domain name 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 March 3, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 23, 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 postmaster@amrcareers.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
OnMarch 27, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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 <amrcareers.com> domain name is confusingly similar to Complainant’s AMR mark.
2. Respondent does not have any rights or legitimate interests in the <amrcareers.com> domain name.
3. Respondent registered and used the <amrcareers.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, AMR Corporation, has operated in the commercial aviation business since 1982, and is the parent company of American Airlines, Inc. and American Eagle Airlines, Inc. Complainant provides business management and financial services to its subsidiaries. Complainant has registered its AMR mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,850,845 issued August 23, 1994).
Respondent registered the disputed <amrcareers.com> domain name on June 3, 2008. The disputed domain name redirects Internet users to an unrelated web page.
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 trademark registration for the AMR mark with the USPTO confers upon Complainant sufficient rights in the mark under Policy ¶ 4(a)(i). See Disney Enters., Inc. v. Kudrna, FA 686103 (Nat. Arb. Forum June 2, 2006) (finding that the complainant’s registration of the DISNEY trademark with the USPTO prior to the respondent’s registration of the disputed domain name is sufficient to prove that the complainant has rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office).
The disputed <amrcareers.com> domain name
contains Complainant’s AMR mark while adding the generic and descriptive word
“careers” and the generic top-level domain “.com.” The Panel finds that the addition of a
top-level domain is irrelevant since every domain requires such an
element. Moreover, the addition of a
generic word is irrelevant where, as here, the mark is the dominant portion of
the disputed domain name. 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 Sony
Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that
“[n]either the addition of an ordinary descriptive
word . . . nor the suffix ‘.com’ detract from the overall
impression of the dominant part of the name in each case, namely the trademark
SONY” and thus Policy ¶ 4(a)(i) is satisfied).
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. Complainant must successfully assert a sufficient prima facie case supporting its allegations before Respondent receives the burden of demonstrating its rights or legitimate interests. The Panel finds that Complainant has met its burden, and therefore Respondent must demonstrate its rights or legitimate interests under Policy ¶ 4(c). 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).
There is no evidence before the Panel that allows the conclusion
that Respondent is commonly known by the disputed domain name. The WHOIS information lists Respondent as
“Jessica Weisman,” and Respondent has failed to provide any contrary evidence. Therefore, the Panel finds that Respondent is
not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21,
2007) (concluding a respondent has no rights or legitimate interests in a
disputed domain name where there is no evidence in the record indicating that
the respondent is commonly known by the disputed domain name); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
The disputed domain name redirects
Internet users to an unrelated web page.
There is no other use associated with the disputed domain name, and the
resolving web page makes no reference to the AMR mark or any feature that would
resemble it. The Panel finds that
Respondent cannot utilize Complainant’s mark in a confusingly similar disputed
domain name for this purpose. Moreover,
there is no evidence that Respondent has made demonstrable preparations to use
the disputed domain name for any other purpose than the current one. As such, the Panel finds that Respondent has
failed to create 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 eBay
Inc. v. Hong,
D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the
complainant’s entire mark in domain names makes it difficult to infer a
legitimate use); see also
Pirelli & C. S.p.A. v.
Tabriz, FA 921798 (Apr. 12, 2007)
(finding that the respondent lacked rights or legitimate interests in a
confusingly similar domain name that it had not made demonstrable preparations
to use since its registration seven months prior to the complaint).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel notes that it may look beyond the Policy ¶ 4(b)
elements while considering a Policy ¶ 4(a)(iii)
analysis, and may find bad faith registration and use from the totality of the
circumstances under Policy ¶ 4(a)(iii). See Do
The Hustle, LLC v. Tropic Web, D2000-0624
(WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are
intended to be illustrative, rather than exclusive.”).
While no commercial use appears to have been created by
Respondent, the Panel notes that the disputed domain name lends itself to the
impression that Respondent sought to create confusion among Internet users,
especially those seeking careers with Complainant, as to whether the disputed
domain name originated with Complainant.
Therefore, the Panel finds that Respondent has registered and continues
to use the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Red Bull GmbH v. Gutch, D2000-0766
(WIPO Sept. 21, 2000) (finding that the respondent’s expected use of the domain
name <redbull.org> would lead people to believe that the domain name was
connected with the complainant, and thus is the equivalent to bad faith use); see also Household Int’l, Inc. v. Cyntom Enter.,
FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (“Just as the employment of a
well-known business name for no particularly good reason undermines any claim
to legitimate interest, so it may also support an inference of a bad-faith attempt
to use the name to harass or exploit its legitimate owner . . . Respondent,
if [it] ever was serious in the registration of this domain name, must have
relied on the good chance he would attract [Complainant’s] customers.”).
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 <amrcareers.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: April 10, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum