national arbitration forum

 

DECISION

 

Continental Airlines, Inc. v. Jim

Claim Number: FA0903001254675

 

PARTIES

Complainant is Continental Airlines, Inc. (“Complainant”), represented by Michael C. Henning of Continental Airlines, Inc., Texas, USA.  Respondent is Jim (“Respondent”), South Korea. 

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <continentalair.com>, registered with Hangang Systems,Inc. d/b/a Doregi.com.

 

PANEL

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically March 27, 2009; the National Arbitration Forum received a hard copy of the Complaint March 30, 2009.  The Complaint was submitted in both Korean and English.

 

On March 30, 2009, Hangang Systems,Inc. d/b/a Doregi.com confirmed by e-mail to the National Arbitration Forum that the <continentalair.com> domain name is registered with Hangang Systems,Inc. d/b/a Doregi.com and that Respondent is the current registrant of the name.  Hangang Systems,Inc d/b/a Doregi.com has verified that Respondent is bound by the Hangang Systems,Inc. d/b/a Doregi.com 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 April 9, 2009, a Korean language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 29, 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@continentalair.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On May 4, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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.

 

Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Korean language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      The domain name that Respondent registered, <continentalair.com>, is identical/confusingly similar to Complainant’s CONTINENTAL mark.

 

2.      Respondent has no rights to or legitimate interests in the <continentalair.com> domain name.

 

3.      Respondent registered and used the <continentalair.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Continental Inc., is the world’s fifth-largest airline.  Complainant has a presence on five continents and carries approximately 69 million passengers on its aircraft per year.  Complainant owns trademark and service mark registration for the CONTINENTAL mark, which was registered as early as 1996 (i.e., Reg. No. 1,993,534, issued Aug. 13, 1996).  It has developed significant goodwill and public recognition in connection with the CONTINENTAL mark.

 

Respondent registered the <continentialair.com> domain name April 9, 1999.  Respondent’s domain name resolves to <usa300.com>, a domain parking site that redirects Internet users to competitors of Continental for the sales of airline tickets.  Respondent has no affiliation with Complainant or permission to use its CONTINENTAL mark.   

 

DISCUSSION

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."

 

Given 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 will draw such inferences as the Panel 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 Complainant to 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 to and/or Confusingly Similar

 

The Panel finds that Complainant established rights in the CONTINENTAL mark through registration of the mark with the USPTO 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 Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).

 

Respondent’s domain name incorporates Complainant’s entire mark.  Addition of the descriptive word “air” does not sufficiently distinguish the domain name from Complainant’s mark.  The word “air” describes Complainant’s business and its relation to the airline industry.  Additionally, the generic top-level domain name “.com” fails to alleviate the confusing similarity between the domain name and Complainant’s mark.  Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).  See 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 Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). 

 

The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i). 

 

Rights to or Legitimate Interests

 

Complainant alleges that Respondent does not have any rights to or legitimate interests in the <continentialair.com> domain name.  Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests, pursuant to Policy ¶ 4(c).  See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)).  Due to Respondent’s failure to respond to the Complaint, the Panel may infer that Respondent does not have rights or legitimate interests in the disputed domain name.  See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise).  The Panel finds that Complainant made a prima facie case, and the Panel now chooses to consider whether an evaluation of all the evidence demonstrates rights or legitimate interests for Respondent under Policy ¶ 4(c). 

 

The Panel finds no evidence in the record that suggests that Respondent is commonly known by the <continentialair.com> domain name.  Complainant asserts that Respondent has no license or affiliation with Complainant’s CONTINENTAL mark and that Respondent is not authorized to use Complainant’s mark.  Moreover, the WHOIS information lists Respondent as “Jim.”  The Panel finds that Respondent lacks rights or legitimate interests 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 was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); 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). 

 

According to Complainant, the <continentialair.com> domain name resolves to a domain parking site that directs Internet users to competitors of Continental.  Such a use does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii), respectively.  See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products.  The Panel finds that this use of the disputed domain name 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 also Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that the respondent’s use of domain names confusingly similar to the complainant’s WAL-MART mark to divert Internet users seeking the complainant’s goods and services to websites competing with the complainant did 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)). 

 

The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii). 

 

Registration and Use in Bad Faith

 

Complainant asserts that Respondent is disrupting Complainant’s business because the domain name resolves to a parking web site, attracting and diverting Internet users to competitors of Continental.  Respondent’s use of Complainant’s CONTINENTAL mark in the <continentialair.com> domain name to direct Internet users to a website promoting other commercial websites that offer competing services constitutes bad faith pursuant to Policy ¶ 4(b)(iii).  Therefore, the Panel finds that Respondent engaged in bad faith registration and use under Policy ¶ 4(b)(iii).  See 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); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).

 

Additionally, Respondent registered and is using the <continentialair.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv), because Respondent is using Complainant’s CONTINENTAL mark to attract Internet users to a website that redirects them via commercial click-through links to the websites of Complainant’s competitors.  As such, Respondent has created a likelihood of confusion as to Complainant’s affiliation and endorsement of the disputed domain name and resolving website.  See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); see also 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). 

 

The Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii). 

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <continentalair.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Hon. Carolyn Marks Johnson, Panelist

Dated: May 18, 2009.

 

 

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