American Airlines v. Cayman Ninety Business / Domain Administrator
Claim Number: FA1007001338059
Complainant is American
Airlines (“Complainant”), represented by Leonard Searcy, of Shook, Hardy & Bacon LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <americaneaglejobs.com>, registered with Rebel.com Corp.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 29, 2010.
On August 4, 2010, Rebel.com Corp. confirmed by e-mail to the National Arbitration Forum that the <americaneaglejobs.com> domain name is registered with Rebel.com Corp. and that Respondent is the current registrant of the name. Rebel.com Corp. has verified that Respondent is bound by the Rebel.com 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 August 9, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 30, 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@americaneaglejobs.com by e-mail. Also on August 9, 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 September 8, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <americaneaglejobs.com> domain name is confusingly similar to Complainant’s AMERICAN EAGLE mark.
2. Respondent does not have any rights or legitimate interests in the <americaneaglejobs.com> domain name.
3. Respondent registered and used the <americaneaglejobs.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 airlines that operates air transportation, air freight, and other air travel services. Complainant conducts regional flight service through its affiliate under the AMERICAN EAGLE mark. Complainant owns several trademark registrations with the United States Patent and Trademark Office ("USPTO") for its AMERICAN EAGLE mark (e.g., Reg. No. 1,388,600 issued April 1, 1986).
Respondent, Cayman Ninety Business / Domain Administrator, registered the <americaneaglejobs.com> domain name on October 1, 2005. Respondent’s disputed domain name resolves to a website that displays various third-party hyperlinks to both competing and unrelated websites.
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.
The Panel finds that Complainant has established rights in
it AMERICAN EAGLE mark under Policy ¶ 4(a)(i) through
its trademark registrations with the USPTO (e.g.,
Reg. No. 1,388,600 issued April 1, 1986).
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 Renaissance Hotel Holdings, Inc. v. Renaissance
Complainant argues that the <americaneaglejobs.com> domain name is confusingly similar to its AMERICAN EAGLE mark because the domain name contains the mark entirely, absent the space between the terms of the mark, while adding the generic term “jobs” and the generic top-level domain (“gTLD”) “.com.” Complainant argues that the above noted changes and additions to its mark do not enable the domain name to be distinct from Complainant’s mark. The Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s AMERICAN EAGLE mark under Policy ¶ 4(a)(i) where the domain name contains the mark entirely, without the spaces between the terms of the mark, in addition to the generic term “jobs” and the gTLD “.com.” 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 Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have rights and legitimate interests in the <americaneaglejobs.com> domain name pursuant to Policy ¶ 4(a)(ii). Complainant must establish a prima facie case supporting its contentions before the burden of proof shifts to Respondent to show that it does possess rights and legitimate interests in the domain name. 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). The Panel finds that Complainant has established a prima facie case and that the burden of proof has been properly transferred to Respondent. However, due to Respondent’s failure to respond to these proceedings the Panel finds that there is a presumption that Respondent lacks rights and legitimate interests in the <americaneaglejobs.com> domain name. See Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). Nevertheless, the Panel will evaluate the evidence on record to determine whether Respondent possesses rights and legitimate interests in the <americaneaglejobs.com> domain name pursuant to Policy ¶ 4(c).
Complainant argues that Respondent is neither commonly known by the <americaneaglejobs.com> domain name nor licensed or otherwise authorized by Complainant to use Complainant’s AMERICAN EAGLE mark. The WHOIS information identifies “Cayman Ninety Business / Domain Administrator” as the registrant and Respondent has not come forward with any evidence indicating that it is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the <americaneaglejobs.com> domain name under Policy ¶ 4(c)(ii). See 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); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant alleges that Respondent’s disputed domain name
resolves to a website that displays links advertising third-party websites,
some of which are in competition with Complainant. Complainant further alleges that Respondent
receives click-through fees from the businesses and websites advertised on
Respondent’s website, and that such use is not a bona fide offering of goods or services or a legitimate
noncommercial or fair use. The Panel
finds that Respondent’s use of the disputed domain name to display various
third-party links to websites in competition with Complainant and unrelated to
Complainant, presumably for financial gain, is 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 Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar.
27, 2007) (holding that the operation of a pay-per-click website at a
confusingly similar domain name was not a bona
fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006)
(finding that the respondent’s use of domain names confusingly similar to the
complainant’s WAL-MART mark to divert Internet users seeking the complainant’s
goods and services to websites competing with the complainant did not
constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy
¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant argues that Respondent’s use of the <americaneaglejobs.com>
domain name disrupts the business of Complainant by offering links to
competitors and diverting potential employees to competing websites. Complainant contends that such disruption is
evidence of bad faith registration and use of the domain name under 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 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).”).
Complainant further argues that
Respondent is using the <americaneaglejobs.com> domain name
to intentionally divert Internet users to Respondent’s website that displays
third-party hyperlinks to various businesses, and that Respondent receives click-through fees from this diversion
scheme. Complainant argues that
Respondent’s use of the disputed domain name is additional evidence of bad
faith registration and use pursuant to Policy ¶ 4(b)(iv). The Panel finds that Respondent’s use of the
disputed domain name to intentionally attract Internet users to Respondent’s
website where Respondent diverts those Internet users to competing and
unrelated websites, via third-party hyperlinks and presumably for financial
gain, is further evidence of bad faith registration and use pursuant 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 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).”).
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 <americaneaglejobs.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: September 16, 2010
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