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American Airlines, Inc. v. Rui Zhang
Claim Number: FA1012001361211
Complainant is American Airlines, Inc. (“Complainant”), represented by Rochelle Claerbaut of Rochelle Claerbaut, P.C., Illinois, USA. Respondent is Rui Zhang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <americanairlinestheater.com>, registered with Moniker Online Services, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 1, 2010; the National Arbitration Forum received payment on December 1, 2010.
On December 3, 2010, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <americanairlinestheater.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the names. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 December 7, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 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@americanairlinestheater.com. Also on December 7, 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 December 29, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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, 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 <americanairlinestheater.com> domain name is confusingly similar to Complainant’s AMERICAN AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <americanairlinestheater.com> domain name.
3. Respondent registered and used the <americanairlinestheater.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, American Airlines, Inc., is a global air transportation company that has provided that service for over 75 years. Complaint owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 514,294 issued August 23, 1949) for its AMERICAN AIRLINES mark. Complainant utilizes the mark to support and promote its air transportation business.
Respondent, Rui Zhang, registered the disputed domain name on January 2, 1998. The disputed domain name resolves to a website offering links to Complainant’s competitors in the air transportation field.
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 contends that it has established rights in the AMERICAN AIRLINES mark via registration with a trademark authority. Trademark registration with a federal trademark authority provides affirmative evidence of established rights in a mark. 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 Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Therefore, the Panel holds that Complainant has established rights in its AMERICAN AIRLINES mark under Policy ¶ 4(a)(i), based upon its trademark registration with the USPTO (e.g., Reg. No. 514,294 issued August 23, 1949).
Complainant also contends that its AMERICAN AIRLINES mark is confusingly similar to Respondent’s <americanairlinestheater.com> domain name. The disputed domain name incorporates the entire AMERICAN AIRLINES mark while only adding the term “theater” and the generic top-level domain (“gTLD”) “.com.” The Panel finds that Respondent has failed to differentiate its disputed domain name from Complainant’s mark by merely adding the word “theater” and a gTLD. See American Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also American Express Co. v. Buy Now, FA 318783 (Nat. Arb. Forum Oct. 14, 2004) (“In the view of the Panel, the disputed domain names are confusingly similar to Complainant’s AMERICAN EXPRESS and AMEX marks. Each disputed domain name contains the AMERICAN EXPRESS or AMEX marks in its entirety and merely adds nondistinctive, descriptive and generic terms, some of which describe Complainant’s business.”).
Therefore, the Panel determines that Respondent’s disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). The Panel finds that the requirements of Policy ¶ 4(a)(i) have been met.
The Panel finds that Complainant has met its burden of proof by making a prima facie case against Respondent. The burden shifts to Respondent to prove that it has legitimate interests or rights in the disputed mark after Complainant has met its prima facie burden. See 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)). When a Respondent fails to file a response to the initial complaint, the Panel may assume that it lacks rights or legitimate interests in the disputed domain name. See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”). Nevertheless, the Panel will still examine the record in its entirety to determine whether Respondent has rights or legitimate interests in the disputed domain name in accordance with Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by the <americanairlinestheater.com> domain name. Respondent has put forth no evidence to contradict that assertion and show that it is commonly known by the disputed domain name. The WHOIS information indentifies the registrant as “Rui Zhang,” which is not similar to the disputed domain name. Thus, the Panel finds that Respondent is not commonly known by the <americanairlinestheater.com> domain name pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also 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).
Complainant also asserts that Respondent is not engaging in a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Respondent’s <americanairlinestheater.com> domain name resolves to a website offering links to competitors of Complainant. Respondent ostensibly receives click-through fees from Internet users that come upon its site. The Panel determines that Respondent’s use of the disputed domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the <americanairlinestheater.com> domain name pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); 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 the requirements of Policy ¶ 4(a)(ii) have been met.
Respondent’s <americanairlinestheater.com> domain name resolves to a website offering links to Complainant’s competitors. Complainant asserts that the disputed domain name disrupts its business as the site offers links that go to competitor’s websites where the redirected Internet user may purchase services from that company instead of Complainant. The Panel finds the confusingly similar domain name used by Respondent is disruptive of Complainant’s business by offering links to competing companies constituting bad faith registration and use under Policy ¶ 4(b)(iii). See American Airlines, Inc. v. Texas Int’l Prop. Assoc., FA 914854 (Nat. Arb. Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant also asserts that Respondent is using the disputed domain name for commercial gain constituting bad faith registration and use under Policy ¶ 4(b)(iv). Respondent’s <americanairlinestheater.com> domain name resolves to a website offering links to Complainant’s competitors; from whom Respondent apparently receives click-through fees when Internet users arrive at Respondent’s site and click the link taking them to the competitors site. The Panel finds that Respondent’s actions constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv) due to Respondent’s apparent commercial gain based upon usage of the confusingly similar domain name. See Univeristy 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).”); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
The Panel finds that the requirements of Policy ¶ 4(a)(iii) have been met.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <americanairlinestheater.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: January 10, 2011
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