Continental Airlines Inc. v. Bridge, Port c/o Bridge Port Enterprises Limited
Claim Number: FA0905001265445
Complainant is Continental
Airlines Inc. (“Complainant”), represented by Michael C. Henning, of Continental Airlines,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <continental-airlines.com>, registered with Moniker Online Services.
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 May 28, 2009; the National Arbitration Forum received a hard copy of the Complaint on May 29, 2009.
On May 29, 2009, Moniker Online Services confirmed by e-mail to the National Arbitration Forum that the <continental-airlines.com> domain name is registered with Moniker Online Services and that Respondent is the current registrant of the name. Moniker Online Services has verified that Respondent is bound by the Moniker Online Services 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 June 8, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 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@continental-airlines.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 1, 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 <continental-airlines.com> domain name is confusingly similar to Complainant’s CONTINENTAL AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <continental-airlines.com> domain name.
3. Respondent registered and used the <continental-airlines.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Continental Airlines Inc., is the world’s fifth largest airline and carries approximately sixty-nine million passengers per year. Complainant is the owner of multiple registrations of the CONTINENTAL AIRLINES mark with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 2,288,901 issued October 26, 1999) and other governmental trademark authorities throughout the world. Complainant uses the CONTINENTAL AIRLINES mark in connection with its airline transportation services.
Respondent registered the <continental-airlines.com>
domain name on November 13, 2000. The
disputed domain name is being used to resolve to a website featuring sponsored click-through
links that further resolve to websites of Complainant’s competitors. Respondent has been subjected to at least two
previous adverse UDRP proceedings in which the disputed domain names were
transferred to the respective complainants of those proceedings. See
Yahoo! Inc. v.
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 concludes that Complainant’s registration of the CONTINENTAL AIRLINES mark with the USPTO and other governmental trademark authorities throughout the world is sufficient to satisfy Policy ¶ 4(a)(i). The Policy does not require Complainant to have registered the CONTINENTAL AIRLINES mark in the country of Respondent’s residence. See 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’)”); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Complainant contends that Respondent’s <continental-airlines.com>
domain name is confusingly similar to its CONTINENTAL AIRLINES mark under
Policy ¶ 4(a)(i). The disputed domain
name incorporates the entirety of Complainant’s CONTINENTAL AIRLINES mark along
with a hyphen and the generic top-level domain “.com.” The Panel concludes that the addition of a
hyphen between the words of a mark does not add any distinct feature capable of
overcoming a finding of confusing similarity.
Additionally, the affixation of a generic-top level domain is
insignificant under Policy ¶ 4(a)(i). See Health Devices Corp. v.
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain name. Once a prima facie case has been established by Complainant, the burden then shifts to Respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). The Panel finds that Complainant has adequately established a prima facie case in these proceedings. Since Respondent has failed to respond to the allegations against it, the Panel may assume that Respondent lacks any rights or legitimate interests in the disputed domain name. 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 BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name”). The Panel now chooses to examine the record to determine whether Respondent has any relevant rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Respondent’s <continental-airlines.com> domain name resolves to a website featuring sponsored click-through links which divert Internet users to websites of Complainant’s competitors. The Panel presumes that Respondent is generating revenue from such use. Thus, the Panel concludes that Respondent’s use of the disputed domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or (iii), respectively. See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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 also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors does not represent 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)).
Moreover, Complainant contends that Respondent is not commonly known by the disputed domain name. The WHOIS information lists the registrant as “Bridge, Port c/o Bridge Port Enterprises Limited.” This information suggests that Respondent is not commonly known by the <continental-airlines.com> domain name and there is no evidence in the record to the contrary. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was 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). The Panel may therefore infer that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has previously been subjected to two adverse UDRP
proceedings where it was ordered to transfer domain names to the rightful
trademark holder. See Yahoo! Inc. v.
Complainant alleges that Respondent is using a domain name, which is confusingly similar to Complainant’s CONTINENTAL AIRLINES mark, to attract Internet users to a website containing links which resolve to websites of Complainant’s competitors. The Panel finds that this constitutes a disruption of Complainant’s business and is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Am. Online, Inc. v. Tapia, FA 328159 (Nat. Arb. Forum Dec. 1, 2004) (“The Panel strongly finds that appropriating Complainant’s mark to refer customers seeking Complainant to Complainant’s competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also 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).
Complainant further contends that Respondent’s registration and use of the disputed domain name constitutes bad faith under Policy ¶ 4(b)(iv) because Respondent intentionally attempts to attract Internet users, for financial gain, to its domain name by creating a likelihood of confusion with Complainant’s CONTINENTAL AIRLINES mark. Additionally, the domain name and resolving website contain sponsored click-through links, which further resolve to websites of Complainant’s competitors. The Panel presumes that Respondent is profiting from such use. See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)); see also 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). Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv).
Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <continental-airlines.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: July 14, 2009
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