American Airlines v. Discovery Names One Limited c/o Richard Irving
Claim Number: FA1001001302698
Complainant is American
Airlines (“Complainant”), represented by Nathan Muyskens, of Shook Hardy & Bacon LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <americanairliens.com>, registered with Fabulous.com Pty 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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 12, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 15, 2010.
On January 13, 2010, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <americanairliens.com> domain name is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty 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 January 25, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 16, 2010 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@americanairliens.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 24, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <americanairliens.com> domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <americanairliens.com> domain name.
3. Respondent registered and used the <americanairliens.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Airlines, markets and sells air transportation, air freight, and related services. Complainant owns the <americanairlines.com> domain name which it uses to operate its website. Complainant began operation in 1934 under its AMERICAN AIRLINES mark. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office ("USPTO") for its AMERICAN AIRLINES mark (e.g., Reg. No. 514,294 issued August 23, 1949).
Respondent registered the <americanairliens.com> domain name on October 2, 2002. The disputed domain name resolves to a website featuring hyperlinks to Complainant’s competitors in the air transportation business.
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.
Complainant contends it has established rights in the
AMERICAN AIRLINES mark. Complainant
holds multiple trademark registrations of the AMERICAN AIRLINES mark with the
USPTO (e.g., Reg. No. 514,294 issued
August 23, 1949). The Panel finds
trademark registration with a federal trademark authority is sufficient to
establish rights in a mark.
Complainant alleges that Respondent’s <americanairliens.com> domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark. The disputed domain name removes the space separating the terms of the mark, misspells Complainant’s mark by transposing the letters “e” and “n” in Complainant’s mark, and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds the removal of a space, the misspelling of Complainant’s mark, and the addition of a gTLD all fail to adequately distinguish the disputed domain name from Complainant’s mark. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”); see also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Thus, the Panel concludes that Respondent’s <americanairliens.com> domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <americanairliens.com> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a 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 <americanairliens.com> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Respondent has
offered no evidence, and there is no evidence in the record, suggesting that
Respondent is commonly known by the <americanairliens.com> domain
name. Complainant asserts that
Respondent is not authorized to use the AMERICAN AIRLINES mark. The WHOIS information identifies the domain
name registrant as “Discovery Names One Limited c/o Richard Irving,” which
Complainant contends is not similar to the disputed domain name. Therefore, the Panel finds that Respondent
has not established rights or legitimate interests in the <americanairliens.com>
domain name pursuant to Policy ¶ 4(c)(ii). See IndyMac
Bank F.S.B. v. Eshback, FA
830934 (Nat. Arb. Forum Dec. 7, 2006) (finding
that the respondent failed to establish rights and legitimate interests in the
<emitmortgage.com> domain name as the respondent was not authorized to
register domain names featuring the complainant’s mark and failed to submit
evidence of that it is commonly known by the disputed domain name); 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).
Respondent is using the <americanairliens.com> domain name to resolve to a website featuring
a hyperlink directory. The hyperlinks
resolve to third-parties, some of which compete with Complainant in the air
transportation industry. Respondent
likely receives click-through fees from the aforementioned hyperlinks. The
Panel finds this use of the confusingly similar disputed domain name is not a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Jerry Damson, Inc. v.
In addition, Respondent’s use of the <americanairliens.com>
domain name constitutes
typosquatting. The Panel finds that
Respondent’s use of a domain name that is a common misspelling of the AMERICAN
AIRLINES mark to redirect Internet users seeking Complainant’s website to
Respondent’s website is further evidence that Respondent lacks rights or interests
pursuant to Policy ¶ 4(a)(ii). See Microsoft Corp. v. Domain
Registration
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s <americanairliens.com> domain name resolves to a website containing
hyperlinks to Complainant’s competitors in the air transportation industry. Complainant claims that Respondent’s use of
the disputed domain name disrupts Complainant’s air transportation business
because Internet users looking to buy air transportation services from
Complainant may be redirected to Complainant’s competitors through Respondent’s
confusingly similar website. Thus, the
Panel finds Respondent’s use of the <americanairliens.com> domain
name disrupts Complainant’s air transportation business and constitutes bad
faith registration and use pursuant to Policy ¶ 4(b)(iii). See 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));
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
Respondent receives click-through fees from the hyperlinks relating to
Complainant’s competitors in the air transportation industry. Internet users may become confused as to
Complainant’s affiliation and sponsorship of the third-party hyperlinks and
website resolving from the disputed domain name. Respondent attempts to profit from this
confusion. The Panel finds Respondent’s
receipt of click-through fees 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 Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar.
21, 2006) (“Respondent is using the
disputed domain name to operate a website which features links to competing and
non-competing commercial websites from which Respondent presumably receives
referral fees. Such use for
Respondent’s own commercial gain is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iv).”).
Furthermore, Respondent has engaged in typosquatting through its use of the <americanairliens.com> domain name, which is a common misspelling of Complainant’s AMERICAN AIRLINES mark. Therefore, the Panel finds Respondent’s use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”); Nat’l Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”).
The Panel finds 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 <americanairliens.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: March 9, 2010
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