United Air Lines, Inc. v. Fundacion Private Whois c/o Domain Administrator
Claim Number: FA1208001460934
Complainant is United Air Lines, Inc. (“Complainant”), represented by Michael C. Henning of United Air Lines, Inc., Texas, USA. Respondent is Fundacion Private Whois c/o Domain Administrator (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <untiedairlines.com>, registered with INTERNET.BS CORP.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on August 31, 2012; the National Arbitration Forum received payment on August 31, 2012.
On September 2, 2012, INTERNET.BS CORP. confirmed by e-mail to the Nat-ional Arbitration Forum that the <untiedairlines.com> domain name is registered with INTERNET.BS CORP. and that Respondent is the current registrant of the name. INTERNET.BS CORP. has verified that Respondent is bound by the INTERNET.BS CORP. 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 7, 2012, the Forum served the Complaint and all Annexes, in-cluding a Written Notice of the Complaint, setting a deadline of September 27, 2012 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, adminis-trative, and billing contacts, and to postmaster@untiedairlines.com. Also on Sep-tember 7, 2012, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 2, 2012, pursuant to Complainant's request to have the dispute de-cided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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
Complainant uses the UNITED AIRLINES service mark in connection with the marketing of airline transportation services.
Complainant holds registrations, on file with the United States Patent and Trade-mark Office (“USPTO”) for the UNITED AIRLINES service mark (including Reg. No. 1,750,451, registered November 10, 1992).
Respondent registered the <untiedairlines.com> domain name on July 21, 2004.
The <untiedairlines.com> domain name is confusingly similar to Complainant’s UNITED AIRLINES mark.
Respondent has not been commonly known by the disputed domain name.
Respondent has not been licensed or otherwise authorized to use Complainant’s UNITED AIRLINES mark.
Respondent is not making a bona fide offering of goods or services or a legit-imate noncommercial or fair use of the <untiedairlines.com> domain name.
Respondent has neither any rights to nor any legitimate interests in the contested domain name.
Respondent’s domain name resolves to a parked website that offers links to the websites of Complainant’s competitors, which results in the diversion of potential customers to those competitors and the disruption of Complainant’s business.
In employing the contested domain name in this manner, Respondent is guilty of bad faith typo-squatting.
Respondent is attempting to attract Internet users to its website, for its commer-cial gain, through the receipt of pay-per-click fees, by creating confusion among users as to that website’s possible association with Complainant’s UNITED AIRLINES mark.
Respondent knew of Complainant’s rights in the UNITED AIRLINES mark when it registered the contested domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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."
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 can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representa-tions 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 Verti-cal Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reason-able inferences of fact in the allegations of a UDRP 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.”
Complainant has rights in the UNITED AIRLINES service mark under Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where a UDRP complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that of Respondent’s residence or place of business (here Panama). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether a complainant has registered its trademark in the country of a respondent’s residence).
Turning to the central question arising under Policy ¶ 4(a)(i), we conclude that the <untiedairlines.com> domain name is confusingly similar to Complainant’s UNITED AIRLINES service mark. The domain name includes Complainant’s entire mark, with only the elimination of the space between the terms of the mark and the transposition of the letters “i” and “t,” plus the addition of the generic top level domain (“gTLD”) “.com.” These alterations of the mark, made in creating the domain name, fail to save the <untiedairlines.com> domain name from the realm of confusing similarity under the standards of the Policy. See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to a complainant’s GOOGLE mark, and noting that:
[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error.
See also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007):
Elimination of … the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Therefore, and because Respondent has failed to respond to the alle-gations of the Complaint filed in this proceeding, we are free to conclude that Respondent has no rights to or legitimate interests in the contested domain name. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000), and Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000), both holding that, where a respondent fails to respond to a UDRP Com-plaint, a panel may draw the inference that that respondent does not have rights to or legitimate interests in a disputed domain name. Nonetheless, we will ex-amine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respond-ent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant alleges, and Respondent does not deny,
that Respondent has not been commonly known by the <untiedairlines.com> domain name, and that Respondent has not been licensed or otherwise auth-orized to use the UNITED AIRLINES service mark. Moreover, the pertinent WHOIS information identifies the registrant of the disputed domain name only as “Fundacion Private Whois c/o Domain Administrator,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the <untiedairlines.com> domain name so as to have ac-quired rights to or legitimate interests in that domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (conclud-ing that a respondent was not commonly known by disputed domain names where the relevant WHOIS information, as well as other evidence in the record, gave no indication that that respondent was commonly known by the domain names, and where a complainant had not authorized that respondent to register a domain name containing its registered mark).
We next observe that Complainant asserts, without objection from Respondent, that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the <untiedairlines.com> domain name, in that Respondent uses the domain name to direct Internet users to the websites of Complainant’s commercial competitors by hosting links to such websites at the website resolving from the subject domain name. This is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommer-cial or fair use of the domain name under Policy ¶ 4(c)(iii). See H-D Mich. Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because a UDRP “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and ser-vices in direct competition with those offered under [a complainant’s] mark,” that respondent was not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Further evidence that Respondent lacks either rights to or legitimate interests in the <untiedairlines.com> domain name under Policy ¶ 4(a)(ii) is found in the fact that Respondent’s domain name contains the transposition of two letters in Com-plainant’s UNITED AIRLINES mark (a practice called typo-squatting) in an at-tempt to take advantage of the mistakes of Internet users who make common typographical errors when entering Complainant’s mark in their web browsers. See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, a respondent had engaged in:
typo[-]squatting, which provides additional evidence that [a] re-spondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).
The Panel thus finds that Complainant has satisfied Policy ¶ 4(a)(ii).
We are persuaded from our review of the evidence that Respondent registered and uses the <untiedairlines.com> domain name to disrupt Complainant’s business in the manner described in the Complaint. This is evidence that Respondent registered and uses the <untiedairlines.com> domain name in bad faith within the contemplation of Policy ¶ 4(b)(iii). See, for example, Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a domain name, which was confusingly similar to the mark of a UDRP complainant, in order to attract Internet users to a directory website containing links to the websites of a complainant’s commercial compet-itors represented bad faith registration and use of the domain name under Policy ¶ 4(b)(iii)).
In addition, we are satisfied from the evidence that Respondent is attempting, for its commercial gain, to attract Internet users to its website by creating confusion among such users as to the possibility of Complainant’s association with Re-spondent’s website. Respondent evidently benefits from the operation of the sponsored links found on the resolving website through the receipt of pay-per-click fees. This demonstrates that Respondent has registered and uses the <untiedairlines.com> domain name in bad faith under Policy ¶ 4(b)(iv). See 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 web-site which features links to competing and non-competing comer-cial 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).
Finally, under this head of the Policy. It appears that Respondent knew of Com-plainant’s rights in the UNITED AIRLINES service mark when it registered the contested domain name. This, too, is evidence that Respondent registered the domain name in bad faith. See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting a respondent's contention that it did not register a disputed domain name in bad faith because the panel found that that respondent had knowledge of a complainant's rights in the UNIVISION mark when registering the domain name).
For these reasons, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <untiedairlines.com> domain name be forth-with TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 16, 2012
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