The American Automobile Association, Inc. v. K.A.L Services
Claim Number: FA0907001273980
Complainant is The
American Automobile Association, Inc. (“Complainant”), represented by Hope Hamilton, of Covington &
Burling LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <aaavactions.com>, registered with Lead Networks Domains Pvt. Ltd.
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.
James A Crary as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 15, 2009; the National Arbitration Forum received a hard copy of the Complaint on July 16, 2009.
On July 23, 2009, Lead Networks Domains Pvt. Ltd. confirmed by e-mail to the National Arbitration Forum that the <aaavactions.com> domain name is registered with Lead Networks Domains Pvt. Ltd. and that Respondent is the current registrant of the name. Lead Networks Domains Pvt. Ltd. has verified that Respondent is bound by the Lead Networks Domains Pvt. Ltd. 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 July 29, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 18, 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@aaavactions.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On Augfust 21, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A Crary 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 <aaavactions.com> domain name is confusingly similar to Complainant’s AAA VACATIONS mark.
2. Respondent does not have any rights or legitimate interests in the <aaavactions.com> domain name.
3. Respondent registered and used the <aaavactions.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The American Automobile Association, Inc., is the owner of the AAA VACATIONS mark, registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,120,266 issued December 9, 1997). Complainant uses the AAA VACATIONS mark in connection with its provision of automotive, travel, and booking services for vacations.
Respondent registered the <aaavactions.com> domain name on August 27, 2005. The disputed domain name resolves to a website featuring click-through advertisement links, including advertisements for travel service providers that compete with 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 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 has established rights in the AAA VACATIONS mark under Policy ¶ 4(a)(i) based on its registration of the mark with the USPTO (Reg. No. 2,120,266 issued December 9, 1997). Moreover, it is not necessary for Complainant to have registered its AAA VACATIONS mark in the country of Respondent’s residence. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction); see also 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).”).
Complainant contends that Respondent’s <aaavactions.com>
domain name is confusingly similar to its AAA VACATIONS mark under Policy ¶ 4(a)(i). The only alteration
is the omission of the space between the terms, the deletion of the letter “a”
in “VACATIONS,” and the affixation of the generic top-level domain “.com.” The Panel finds that these modifications do
not sufficiently distinguish the disputed domain name from Complainant’s AAA
VACATIONS mark. Therefore, the Panel
finds that Respondent’s <aaavactions.com> domain name is
confusingly similar to Complainant’s AAA VACATIONS mark pursuant to Policy ¶
4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299
(WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was
confusingly similar to the complainant’s PFIZER mark, as the respondent simply
omitted the letter “i”); see also Bond
& Co. Jewelers, Inc. v.
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant contends that Respondent does not have any rights or 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 Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). The Panel will examine the record to determine whether Respondent has any relevant rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
The disputed domain name resolves to a website featuring sponsored click-through links that further resolve to the websites of Complainant’s competitors. The Panel presumes that Respondent is earning click-through fees for each Internet user that is redirected to the sponsored websites. Thus, the Panel finds that Respondent’s use of the <aaavactions.com> domain name is not in connection with 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 Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process).
Furthermore, Complainant contends that Respondent is not commonly known by the <aaavactions.com> domain name under Policy ¶ 4(c)(ii). The pertinent WHOIS information identifies the registrant of the disputed domain name as “K.A.L Services,” and the Panel has no other information to rely upon in the record with respect to this element of the Policy. Therefore, the Panel finds that Respondent is not commonly known by the <aaavactions.com> domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also 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).
Finally, the Pane finds that Respondent is taking advantage
of a common misspelling of Complainant’s AAA VACATIONS mark. Respondent is using this common misspelling,
the omission of the letter “a” in “VACATIONS,” in the disputed domain name to
divert Internet users to Respondent’s website.
This practice is commonly referred to as “typosquatting.” Thus, the Panel concludes that Respondent’s
engagement in the practice of typosquatting is further evidence that Respondent
lacks rights and legitimate interests in the <aaavactions.com>
domain name under Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain Registration
Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that the links appearing on the website
resolving from the <aaavactions.com> domain name promote
businesses that compete with Complainant in the travel services industry. The Panel finds that this disruption to
Complainant’s business provides evidence of bad faith registration and use of
the disputed domain name under Policy ¶ 4(b)(iii). See
David Hall Rare Coins v.
Complainant contends that Respondent is intentionally
attempting to attract Internet users to its confusingly similar domain name by
creating a likelihood of confusion with Complainant and its AAA VACATIONS
mark. The disputed domain name’s
resolving website features click-through advertisements promoting Complainant’s
competitors in the travel industry. The
Panel presumes that Respondent is profiting from this diversion scheme through
the generation of click-through fees.
Therefore, the Panel concludes that Respondent has engaged in bad faith
registration and use of the <aaavactions.com> domain name under
Policy ¶ 4(b)(iv).
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 Asbury Auto. Group, Inc. v.
Finally, the Panel determines that Respondent has engaged in typosquatting. The Panel need only note here that typosquatting is generally considered as sufficient evidence itself of bad faith registration and use under Policy ¶ 4(a)(iii). The Panel so finds in the instant case. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
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 <aaavactions.com> domain name be TRANSFERRED from Respondent to Complainant.
James A Crary, Panelist
Dated: September 3, 2009
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