American Airlines v. Lisa Willingham
Claim Number: FA1009001345982
Complainant is American Airlines ("Complainant"), represented by Leonard Searcy of Shook, Hardy & Bacon LLP, Missouri, USA. Respondent is Lisa Willingham ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <americanairlinescareers.net>, registered with GoDaddy.com, 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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 13, 2010; the National Arbitration Forum received payment on September 13, 2010.
On September 14, 2010, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <americanairlinescareers.net> 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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 20, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 12, 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@americanairlinescareers.net. Also on September 20, 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 October 21, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <americanairlinescareers.net> domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <americanairlinescareers.net> domain name.
3. Respondent registered and used the <americanairlinescareers.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Airlines, is an international air transportation, air freight, and related airline business provider. Complainant owns 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, Lisa Willingham, registered the <americanairlinescareers.net> domain name on November 23, 2009. Respondent’s disputed domain name resolves to a blank website. Respondent has used the disputed domain name to create e-mail addresses that appear to Complainant to be used to post fake job postings on <craigslist.org>.
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 its AMERICAN AIRLINES mark under Policy ¶ 4(a)(i) through its many trademark registrations with the USPTO (e.g., Reg. No. 514,294 issued August 23, 1949). 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 Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO).
Complainant contends that the <americanairlinescareers.net> domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark. Complainant contends that Respondent has not created a domain name distinct from Complainant’s mark where the domain name contains its entire mark, absent the space between the terms of the mark, while adding the generic term “careers” and the generic top-level domain (“gTLD”) “.net.” The Panel agrees and finds that the disputed domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark under Policy ¶ 4(a)(i). 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 Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has contended that Respondent does not have any rights or legitimate interests in the <americanairlinescareers.net> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient 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 disputed domain name. See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). 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).
Complainant contends that Respondent is not commonly known by, or licensed to register the disputed domain name. Further, Complainant argues that the WHOIS information does not indicate that Respondent is commonly known by the disputed domain name. The Panel agrees and finds that nothing in the WHOIS information or any other evidence on record indicates that Respondent is commonly known by the <americanairlinescareers.net> domain name under 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 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).
Complainant argues that the disputed domain name resolves to an empty website with no active use. Complainant contends that the blank website, and lack of usage of the disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Panel finds that Respondent’s failure to make an active use of the <americanairlinescareers.net> domain name other than to host a blank website is 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 Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that when the respondent declares its intent to develop a website, “[Policy ¶] 4(c)(i) requires Respondent to show 1) ‘demonstrable’ evidence of such preparations to use the domain name, and 2) that such preparations were undertaken ‘before any notice to [Respondent] of the dispute’”); see also Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) (finding that the respondent lacked rights or legitimate interests in a confusingly similar domain name that it had not made demonstrable preparations to use since its registration seven months prior to the complaint).
Further, Complainant alleges that Respondent is using the disputed domain name in order to utilize an e-mail address that appears to be affiliated with Complainant’s business to post fake job postings on <craigslist.org>. Complainant contends that such fraudulent activity is further evidence of Respondent’s lack of rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). The Panel finds that Respondent’s use of the disputed domain name as an e-mail alias in order to acquire personal information about Internet users through fictitious job postings that purport of be made by Complainant is further evidence of Respondent’s lack of rights and legitimate interests in the domain name under Policy ¶ 4(a)(ii). See HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding that a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s website, and is used to acquire personal information from Complainant’s potential associates fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or (iii)); see also Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (finding that using a domain name to redirect “Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients,” is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that it may consider the totality of the circumstances when conducting a Policy ¶ 4(a)(iii) analysis, and that the review is not limited to the enumerated factors in Policy ¶ 4(b) but to the totality of the circumstances. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he examples [of bad faith] in Paragraph 4(b) are intended to be illustrative, rather than exclusive.”); see also Twentieth Century Fox Film Corp. v. Risser, FA 93761 (Nat. Arb. Forum May 18, 2000) (“The requirement in the ICANN Policy that a complainant prove that domain names are being used in bad faith does not require that it prove in every instance that a respondent is taking positive action. Use in bad faith can be inferred from the totality of the circumstances even when the registrant has done nothing more than register the names.”).
Complainant alleges that Respondent’s disputed domain name resolves to a blank webpage, and that Respondent has failed to make an active use of the disputed domain name since registering the name. The Panel finds that Respondent’s failure to make an active use of the disputed domain name since registering the name nearly one year ago is evidence that Respondent registered the domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Nat. Arb. Forum Apr. 12, 2007) (holding that non-use of a confusingly similar domain name for over seven months constitutes bad faith registration and use); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
Complainant contends that Respondent is using the disputed domain name as an e-mail alias so Respondent can post fake job postings under the color of Complainant’s marks in order to acquire the personal information of Complainant’s customers and potential employees. The Panel finds that such use is indicative of Respondent’s bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“The domain name <billing-juno.com> was registered and used in bad faith by using the name for fraudulent purposes.”); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients).
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 <americanairlinescareers.net> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: October 29, 2010
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