The Coryn Group II, LLC v. Michael Robert
Claim Number: FA0907001274831
Complainant is The
Coryn Group II, LLC (“Complainant”), represented by Thomas P. Arden, of Holland & Knight LLP,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <usa3000airlines.net>, <usa3000airline.net>, and <applesvacations.net>, registered with Onlinenic, 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On July 22, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 11, 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@usa3000airlines.net, postmaster@usa3000airline.net, and postmaster@applesvacations.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s
<usa3000airlines.net> and <usa3000airline.net>
domain names are confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <usa3000airlines.net>, <usa3000airline.net>, and <applesvacations.net> domain names.
3. Respondent registered and used the <usa3000airlines.net>, <usa3000airline.net>, and <applesvacations.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, The Coryn Group II, LLC, provides travel
services through the use of its
Respondent registered the <usa3000airlines.net> domain name on
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.
Previous panels have found that a complainant establishes
rights in a mark through a registration of the mark with a governmental
trademark authority. See Metro.
Life Ins. Co. v. Bonds, FA
873143 (Nat. Arb. Forum
The Panel finds that Complainant’s rights in a mark date
back to the application filing date of the subsequently registered trademark. See Planetary Soc’y v. Rosillo,
D2001-1228 (WIPO
Complainant alleges Respondent’s <applesvacations.net>
domain name is identical to
Complainant’s APPLES VACATIONS mark. The
disputed domain name simply adds the generic top-level domain (“gTLD”)
“.net.” The Panel finds the addition of a
gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See Katadyn N. Am. v.
Complainant further contends Respondent’s <usa3000airlines.net> and <usa3000airline.net>
domain names are confusingly similar to Complainant’s
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has alleged Respondent does not have rights or legitimate interests in the <usa3000airlines.net>, <usa3000airline.net>, and <applesvacations.net> domain names. 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(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the <usa3000airlines.net>, <usa3000airline.net>, and <applesvacations.net> domain names under Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”).
Respondent’s disputed domain names resolve to websites featuring links to Complainant’s competitors in the travel service industry. Complainant alleges Respondent uses the disputed domain names to profit from click-through fees received for displaying the competing links on the resolving websites. The Panel finds Respondent’s uses of the confusingly similar disputed domain names are not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain names under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also 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)).
The WHOIS information, provided by Complainant, lists
Respondent as “Michael Robert.”
Respondent fails to offer evidence contradicting this information and
showing Respondent is commonly known by the <usa3000airlines.net>, <usa3000airline.net>, and <applesvacations.net>
domain names. There is no other evidence
on the record showing Respondent is commonly known by the disputed domain
name. Complainant further asserts that
Respondent is not authorized to use the
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <usa3000airlines.net>, <usa3000airline.net>, and <applesvacations.net> domain names resolve to websites featuring links to Complainant’s competitors in the travel services industry. The Panel finds Respondent’s uses of confusingly similar disputed domain names to link to competing travel services constitute a disruption of Complainant’s business, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)).
The Panel infers that Respondent profits from redirecting Internet users interested in Complainant to website featuring links to Complainant’s competitors through the receipt of click-through or other referral type fees. Respondent is attempting to profit by creating a likelihood of confusion as to Complainant’s affiliation with the disputed domain names and resolving websites. Therefore, the Panel finds Respondent’s use of the disputed domain names constitutes bad faith registration and use under Policy ¶ 4(b)(iv). 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 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 <usa3000airlines.net>, <usa3000airline.net>, and <applesvacations.net> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: August 31, 2009
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