American Airlines v. Miguel Gila
Claim Number: FA1001001302710
Complainant is American Airlines (“Complainant”), represented by Nathan
J. Muyskens, of Shook, Hardy & Bacon LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <americaairlinecenter.com>, registered with Backslap Domains, 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.
James A. Carmody, Esq., 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, Backslap Domains, Inc confirmed by e-mail to the National Arbitration Forum that the <americaairlinecenter.com> domain name is registered with Backslap Domains, Inc and that Respondent is the current registrant of the name. Backslap Domains, Inc has verified that Respondent is bound by the Backslap Domains, Inc 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 19, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 8, 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@americaairlinecenter.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 11, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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
<americaairlinecenter.com>
domain name is confusingly similar to Complainant’s
2. Respondent does not have any rights or legitimate interests in the <americaairlinecenter.com> domain name.
3. Respondent registered and used the <americaairlinecenter.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Airlines, is one of the world’s
largest air transportation and freight service companies. Complainant owns multiple trademark
registrations with the United States Patent and Trademark Office (“USPTO”) for
the AMERICAN AIRLINES mark (e.g., Reg.
No. 514,294 issued August 23, 1949) and a registration for the
Respondent registered the <americaairlinecenter.com> domain name on September 1, 2004. Respondent’s disputed domain name resolves to a website displaying third-party links to websites offering airline-related products and services with some websites being in competition 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.
Complainant argues that Respondent’s <americaairlinecenter.com> domain name is confusingly
similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the disputed domain name. Complainant is required to produce a prima facie case in support of its allegations and then the burden shifts to Respondent to prove it possesses rights or legitimate interests in the disputed domain name. The Panel finds Complainant has adequately established a prima facie case. Due to Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not possess rights or legitimate interests in the disputed domain name. The Panel, however, will examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c). See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 2, 2002) (“Because Complainant’s submissions constitute a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its right or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Am. Express Co. v. Fan 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.”).
Complainant contends that Respondent is neither commonly known by nor licensed to register the disputed domain name. The Panel finds that the registrant’s WHOIS information demonstrates that Respondent is not commonly know by the disputed domain name. Therefore, pursuant to Policy ¶ 4(c)(ii), the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name. See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly know 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 where the respondent was commonly know by the domain names in dispute); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvavations.com>] domain name.”).
Respondent’s disputed domain name resolves to a website featuring click-through links and advertisements to third-party websites, some of which are in competition with Complainant. The Panel finds that Respondent’s use of the disputed domain name to redirect Internet users to Complainant’s competitors, presumably for financial gain, does not constitute 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 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 Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (concluding that using a confusingly similar domain name to divert Internet users to competing websites does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Respondent is taking advantage of Internet users that are
attempting to reach Complainant’s website by capitalizing on the misspelling of
the Complainant’s
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the disputed domain name, registered September 1, 2004, to divert Internet customers seeking Complainant’s website to the competitive websites that resolve from the disputed domain name, through the confusion caused by similarity between the AMERICAN AIRLINES CENTER mark and the disputed domain name. The Panel finds that Respondent’s use of the disputed domain name disrupts Complainant’s business, and is evidence of registration and use in bad faith pursuant to Policy 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com>domain name in bad faith pursuant to ICANN Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant’s mark to divert Internet users to a competitor’s website. It is a reasonable inference that Respondent’s purpose of registration and use was to either disrupt or create confusion for Complainant’s business in bad faith pursuant to Policy ¶ 4(b)(iii) [and] (iv).”).
Respondent is using the disputed domain name to
intentionally divert Internet users to the associated website, which displays
third-party links to competing websites.
In cases such as this, the Panel presumes that Respondent is collecting
click-through fees and attempting to profit by creating a likelihood of
confusion between Complainant’s
The Panel has already determined that Respondent has engaged in typosquatting. This practice has been found to constitute evidence by itself of bad faith registration and use under Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form). Therefore, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(a)(iii). See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.)
The Panel finds that 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 <americaairlinecenter.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: February 25, 2010
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