Atlantic Southeast Airlines, Inc. v. Purple Bucquet
Claim Number: FA1005001326434
Complainant is Atlantic
Southeast Airlines, Inc. (“Complainant”), represented by Kevin W. Grierson, of FSB FisherBroyles,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <atlanticsoutheastairlines.com>,
registered with Power Brand Center Corp.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 25, 2010.
On May 27, 2010, Power Brand Center Corp. confirmed by e-mail to the National Arbitration Forum that the <atlanticsoutheastairlines.com> domain name is registered with Power Brand Center Corp. and that Respondent is the current registrant of the name. Power Brand Center Corp. has verified that Respondent is bound by the Power Brand Center Corp. 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 June 1, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 21, 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 postmaster@atlanticsoutheastairlines.com. Also on June 1, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 24, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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" 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 <atlanticsoutheastairlines.com> domain name is identical to Complainant’s ATLANTIC SOUTHEAST AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <atlanticsoutheastairlines.com> domain name.
3. Respondent registered and used the <atlanticsoutheastairlines.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Atlantic Southeast Airlines, Inc., is a provider of transportation services for persons, property, and cargo. Complainant asserts common law rights in the ATLANTIC SOUTHEAST AIRLINES mark by virtue of its continuous use since 1979 and subsequent acquisition of secondary meaning.
Respondent, Purple Bucquet, registered the <atlanticsoutheastairlines.com> domain name on August 17, 2000. The disputed domain name resolves to a webpage featuring numerous links to travel and airline related services and information.
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 asserts common law rights in the ATLANTIC SOUTHEAST AIRLINES mark by virtue of its continuous use of the mark since 1979 and the subsequent establishment of secondary meaning in the mark. The Panel finds that a trademark registration is not necessary when a Complainant provides sufficient evidence of continuous use and secondary meaning to prove common law rights in the mark. See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the complainant need not own a valid trademark registration for the ZEE CINEMA mark in order to demonstrate its rights in the mark under Policy ¶ 4(a)(i)); see also Ass’n of Tex. Prof’l Educators, Inc. v. Salvia Corp., FA 685104 (Nat. Arb. Forum May 31, 2006) (holding that the complainant had demonstrated common law rights in the ATPE mark through continuous use of the mark in connection with educational services for over twenty-five years).
Complainant contends that it has common law rights in the
ATLANTIC SOUTHEAST AIRLINES mark because it has used the mark in connection
with its airline transportation business since 1979. Complainant owns a trademark registration
with the United States Patent and Trademark Office (“USPTO”) for the ATLANTIC
SOUTHEAST AIRLINES mark (e.g., Reg.
No. 2,816,027 filed February 27, 2001) with a first use in commerce date of
June 27, 1979. Complainant alleges that
it had over 12.5 million passengers in 2008 and flew over 5.9 billion passenger
miles that year, which is evidence that Complainant’s ATLANTIC SOUTHEAST
AIRLINES mark is widely known and recognized as a provider in the airline
industry. The Panel finds that
Complainant has shown sufficient evidence of continuous use and acquisition of
secondary meaning to establish common law rights in the mark dating back to
1979. See Quality Custom Cabinetry, Inc. v.
Cabinet Wholesalers, Inc., FA 115349 (Nat. Arb. Forum Sept. 7,
2002) (finding that the complainant established common law rights in the mark
through continuous use of the mark since 1995 for the purpose of Policy ¶
4(a)(i)); see also Goepfert
v.
Complainant contends
that Respondent’s <atlanticsoutheastairlines.com>
domain name is identical to Complainant’s mark because the only differentiating
features are the omission of the spaces between the words and the addition of
the generic top-level domain (“gTLD”) “.com.”
The Panel finds that neither deleting spaces nor adding the gTLD
adequately distinguishes the disputed domain name from Complainant’s mark for
the purposes of Policy ¶ 4(a)(i). See
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
The requirements of Policy 4(a)(ii)
dictate that Complainant has the burden of presenting a prima facie case against Respondent’s rights and legitimate
interests in order to pass the burden to Respondent to demonstrate such rights
and legitimate interests. The
Complainant is deemed to have met that obligation in this proceeding and thus
it is now the responsibility of Respondent to demonstrate its rights or
legitimate interests. The failure of the
Respondent to respond, however, indicates that Respondent lacks rights and
legitimate interests in the disputed domain name and supports an inference that
Complainant’s allegations are true as stated.
See Law Soc’y of Hong Kong v. Domain Strategy, Inc., HK-0200015
(ADNDRC Feb. 12, 2003) (“A respondent is not obligated to participate in a
domain name dispute . . . but the failure to participate leaves a respondent
vulnerable to the inferences that flow naturally from the assertions of the
complainant and the tribunal will accept as established assertions by the
complainant that are not unreasonable.”); see
also Bank of Am. Corp. v.
McCall, FA 135012 (Nat. Arb. Forum Dec.
31, 2002) (“Respondent's failure to respond not only results in its failure to
meet its burden, but also will be viewed as evidence itself that Respondent
lacks rights and legitimate interests in the disputed domain name.”).
Complainant argues that Respondent is not commonly known by
the <atlanticsoutheastairlines.com>
domain name. The Panel finds that the
WHOIS information fails to identify the Respondent as the disputed domain name,
indicating that Respondent is not commonly known by the disputed domain and
thus lacks rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that
Respondent is ‘commonly known by’ the disputed domain name” as one factor in
determining that Policy ¶ 4(c)(ii) does not apply); see also
Complainant alleges that Respondent’s <atlanticsoutheastairlines.com> domain name resolves to a site that makes Internet users believe they have arrived at Complainant’s official site since the resolving website offers links to flight booking and other airline travel related topics and services. Complainant argues that Respondent is paid as a result of the links at the disputed domain name. The Panel finds that Respondent’s website consisting of paid links relating to Complainant’s business as an airline is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate non commercial or fair use according to Policy ¶ 4(c)(iii). See Hewlett-Packard Co. v. Collazo, FA 144628 (Nat. Arb. Forum Mar. 5, 2003) (holding that the respondent’s use of the <hpcanada.com> domain name to post links to commercial websites and subject Internet users to pop-up advertisements was not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name); see also Fox News Network, LLC v. Reid, D2002-1085 (WIPO Feb. 18, 2003) (finding that the respondent’s use of the disputed domain name to generate revenue via advertisement and affiliate fees is not a bona fide offering of good or services).
The Panel finds Policy ¶ 4(a)(ii)
has been satisfied.
Complainant contends that Respondent’s <atlanticsoutheastairlines.com> domain name is used by Respondent to provide travel-related services through pay-per-click links. Complainant argues that as these links clearly relate to Complainant’s business, Internet users may be misled into thinking they have arrived at Complainant’s site. This confusion over Complainant’s affiliation with Respondent disrupts Complainant’s business if the Internet users book a flight through Respondent’s website or otherwise click on links that divert them away from Complainant. The Panel finds that using a
disputed domain name to divert Internet users and disrupt Complainant’s business is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006) (holding that the respondent’s registration of a domain name substantially similar to the complainant’s AMERICAN SINGLES mark in order to operate a competing online dating website supported a finding that respondent registered and used the domain name to disrupt the complainant’s business under Policy ¶ 4(b)(iii)); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).
Complainant argues that Respondent intended to attract
Internet users to its resolving website by registering Complainant’s complete
mark as Respondent’s <atlanticsoutheastairlines.com>
domain name. Complainant asserts that
Respondent’s use of the disputed domain name attempts to create revenue for
Respondent through the presence of the pay-per-click links that relate to
Internet users’ original search terms or topic.
The Panel finds that intentionally using Complainant’s mark to attract Internet
users to a site unaffiliated with Complainant for Respondent’s commercial gain
represents bad faith registration and use according to 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 Constellation Wines
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 <atlanticsoutheastairlines.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: June 30, 2010
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