American Airlines, Inc. v Jade Crittenden
Claim Number: FA1002001308872
Complainant is American Airlines, Inc. (“Complainant”), represented by Kristin Jordan Harkins, of Conley Rose, P.C., Texas, USA. Respondent is Jade Crittenden (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <americanairlinesflight.info>, registered with GoDaddy.com, Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on February 19, 2010. With its
Complaint, Complainant also chose to proceed entirely electronically under the
new Rules for Uniform Domain Name Dispute Resolution Policy (“Rules”) and the
new Forum’s Supplemental Rules for Uniform Domain Name Dispute Resolution
Policy (“Supplemental Rules”) by submitted an “opt-in” form available on the
Forum’s website.
On February 22, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <americanairlinesflight.info> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, 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 February 25, 2010, the Forum
served the Complaint and all Annexes, including a Written Notice of the
Complaint, setting a deadline of March 17, 2010 by which Respondent could file
a Response to the Complaint, via e-mail to all entities and persons listed on
Respondent’s registration as technical, administrative, and billing contacts,
and to
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 26, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 (effective March 1, 2010, but opted-in to by Complainant for this case) "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <americanairlinesflight.info> domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <americanairlinesflight.info> domain name.
3. Respondent registered and used the <americanairlinesflight.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American
Airlines, Inc., holds multiple trademark registrations for its AMERICAN
AIRLINES mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 514,294 issued August 23,
1949) in connection with air travel.
Respondent, Jade Crittenden, registered the <americanairlinesflight.info> domain name on December 11, 2009. The disputed domain name resolves to a website featuring third-party links to products and services unrelated to Complainant from which Respondent presumably receives click-through fees.
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.
Panel finds that Complainant has established rights in the AMERICAN AIRLINES mark under Policy ¶ 4(a)(i) through its trademark registration with the USPTO. See 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).”); see also Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations).
Respondent’s <americanairlinesflight.info>
domain name
is confusingly similar to Complainant’s AMERICAN AIRLINES mark pursuant to Policy
¶ 4(a)(i). Respondent’s disputed domain
name is confusingly similar to Complainant’s AMERICAN AIRLINES mark because
Respondent’s disputed domain name incorporates the entirety of Complainant’s
mark, removes the space between the words in Complainant’s mark, adds the
descriptive term “flight” and adds the generic top-level domain (“gTLD”)
“.info.” The Panel finds that the
removal of spaces in Complainant’s mark does not serve to distinguish a
disputed domain name and a mark. See Bond & Co. Jewelers, Inc. v. Tex.
Int’l Prop. Assocs., FA 937650
(Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between
terms and the addition of a gTLD do not establish distinctiveness from the
complainant’s mark under Policy ¶ 4(a)(i); see
also George Weston Bakeries Inc. v.
McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that
eliminating the space between terms of a mark still rendered the
<gwbakeries.mobi> domain name identical to the complainant’s GW BAKERIES
mark). Additionally, the Panel finds the
addition of the descriptive term “flight” creates a confusing similarity
between the disputed domain name and Complainant’s mark. See
Kohler Co. v. Curley, FA 890812
(Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the
disputed domain name,
contained the complainant’s mark in its entirety adding “the descriptive term
‘baths,’ which is an obvious allusion to complainant’s business.”); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2,
2006) (finding that the addition of the generic term “finance,” which described
the complainant’s financial services business, as well as a gTLD, did not
sufficiently distinguish the respondent’s disputed domain name from the
complainant’s mark under Policy ¶ 4(a)(i)).
The Panel also finds that the addition of a gTLD is irrelevant in
distinguishing a disputed domain name and a mark. See
Trip
Network Inc. v. Alviera, FA 914943
(Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a
domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Microsoft
Corp. v. Zournas, FA 1093928 (Nat. Arb. Forum Dec. 10, 2007) (“the Panel finds that Respondent’s <windows.info> domain name is
identical to Complainant’s WINDOWS mark as the addition of a gTLD is a
necessary addition in the creation of any domain name and therefore an
indistinguishing characteristic under Policy ¶ 4(a)(i).“). Therefore, the Panel finds that
the disputed domain name is confusingly similar to Complainant’s AMERICAN
AIRLINES mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on the arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. 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 Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
The WHOIS information lists the registrant as “Jade Crittenden.” Respondent is not licensed or otherwise permitted to use Complainant’s mark in any domain name. With no evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to 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 M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent’s <americanairlinesflight.info> domain name was registered December 11, 2009. The disputed domain name resolves to a website featuring third-party links to products and services unrelated to Complainant from which Respondent presumably receives click-through fees. The Panel finds that Respondent’s use does not constitute a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds Respondent’s use of the confusingly similar disputed domain name to attract Internet users seeking Complainant’s products or services and divert them to a website from which Respondent presumably profits is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
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 <americanairlinesflight.info> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 9, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum