America West
Airlines v. Travel Reservations Network
Claim
Number: FA0302000146222
Complainant is
America West Airlines, Tempe, AZ (“Complainant”) represented
by Bruce E. Samuels, of Lewis and Roca LLP. Respondent is
Travel Reservations Network, Laredo, TX (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAMES
The
domain name at issue is <america-west-airlines.com> and
<america-west-airline.com>, registered with Intercosmos Media
Group, Inc. d/b/a Directnic.Com.
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.
Tyrus
R. Atkinson, Jr., as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on February 18, 2003; the Forum received a hard copy of the
Complaint on February 20, 2003.
On
February 19, 2003, Intercosmos Media Group, Inc. d/b/a Directnic.Com
confirmed by e-mail to the Forum that the domain names <america-west-airlines.com>
and <america-west-airline.com> are registered with Intercosmos
Media Group, Inc. d/b/a Directnic.Com and that Respondent is the current
registrant of the names. Intercosmos Media Group, Inc. d/b/a Directnic.Com
has verified that Respondent is bound by the Intercosmos Media Group, Inc.
d/b/a Directnic.Com 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
February 24, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of March 17, 2003 by which Respondent could file a Response to the
Complaint, was transmitted to Respondent via e-mail, post and fax, to all
entities and persons listed on Respondent's registration as technical,
administrative and billing contacts, and to postmaster@america-west-airlines.com,
and postmaster@america-west-airline.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On
March 21, 2003, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr., as
Panelist.
Having
reviewed the communications records, the Administrative Panel (the
"Panel") finds that the 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."
Therefore, the Panel may issue its decision based on the documents
submitted and in accordance with the ICANN Policy, ICANN Rules, the 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <america-west-airlines.com>
and
<america-west-airline.com> domain names are confusingly similar to
Complainant’s AMERICA WEST and AMERICA WEST AIRLINES marks.
2. Respondent does not have any rights or
legitimate interests in the
<america-west-airlines.com>
and
<america-west-airline.com> domain names.
3. Respondent registered and used the <america-west-airlines.com>
and <america-west-airline.com> domain names in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant
holds trademark registrations for AMERICA WEST ARILINES (Reg. No. 1,376,326)
and AMERICA WEST (Reg. No. 1,145,610) with the United States Patent and
Trademark Office. Complainant has used
the marks in commerce in relation to its air carrier service since 1983. Complainant is currently the ninth largest
airline in the United States.
Complainant’s service includes ninety-two destinations across the United
States, Mexico and Canada with over 800 daily departures. Complainant operates its main website at
<americawest.com>. Complainant
uses the website to sell tickets as well as to book hotels, car rentals and
vacation packages.
Respondent
registered the <america-west-airlines.com> and
<america-west-airline.com> domain names on August 19,
2000. Respondent is using the disputed
domain names to divert Internet users to a commercial website“America West
Airline-Fares Flights and Schedules,”
which sells airline tickets and trip packages.
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.
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 has
established that it has rights in the AMERICA WEST and AMERICA WEST AIRLINES
marks through registration with the United States Patent and Trademark Office.
Respondent’s <america-west-airlines.com>
domain name is identical to Complainant’s AMERICA WEST AIRLINES and AMERICA
WEST marks because it incorporates the entirety of Complainant’s marks and
merely adds hyphens to separate the words.
The addition of a hyphen does not add any distinct characteristics
capable of overcoming a claim of confusing similarity. See Chernow Communications Inc. v. Kimball, D2000-0119 (WIPO May 18,
2000) (holding “that the use or absence of punctuation marks, such as hyphens,
does not alter the fact that a name is identical to a mark"); see also
Nintendo Of Am. Inc. v. This Domain Is
For Sale, D2000-1197 (WIPO Nov. 1, 2000) (finding <game-boy.com>
identical and confusingly similar tothe Complainant’s GAME BOY mark, even
though the domain name is a combination of two descriptive words divided by a
hyphen).
Respondent’s
<america-west-airline.com> domain name is confusingly similar to
Complainant’s AMERICA WEST AIRLINES and AMERICA WEST marks because it
incorporates the entirety of Complainant’s marks and merely omits the “s” at
the end of AIRLINES. The omission of an
“s” does not create a distinct domain name.
Moreover, the addition of hyphens in between the words of the domain
name does not add any distinct features capable of overcoming Policy ¶ 4(a)(i)
analysis. See Universal City Studios, Inc. v.
HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the
letter “s” from the Complainant’s UNIVERSAL STUDIOS STORE mark did not change
the overall impression of the mark and thus made the disputed domain name
confusingly similar to it); see also Easyjet Airline Co. Ltd. v.
Harding, D2000-0398 (WIPO June 22, 2000) (finding it obvious that the
domain name <easy-jet.net> was virtually identical to
Complainant's EASYJET mark and therefore that they are confusingly similar).
Accordingly, the
Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent
has failed to submit a Response in this proceeding. Thus, the Panel is permitted to accept all reasonable allegations
and inferences in the Complaint as true.
See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA
95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable
inferences of fact in the allegations of Complainant 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”).
Moreover,
Respondent has failed to invoke any circumstances that could demonstrate rights
and legitimate interests in the domain name.
When Complainant asserts a prima facie case against Respondent,
the burden of proof shifts to Respondent to show that it has rights or
legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO
Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no
rights or legitimate interests with respect to the domain, the burden shifts to
Respondent to provide credible evidence that substantiates its claim of rights
and legitimate interests in the domain name); see also Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the
Respondent has failed to invoke any circumstance that could demonstrate any
rights or legitimate interests in the domain name).
Respondent is
using the identical and confusingly similar domain names, <america-west-airlines.com>
and <america-west-airline.com>, to divert Internet
users to a commercial website that competes with Complainant’s services. This type of use is not a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Big Dog Holdings, Inc. v. Day, FA 93554 (Nat. Arb. Forum Mar. 9,
2000) (finding no legitimate use when Respondent was diverting consumers to its
own website by using Complainant’s trademarks); see also N. Coast Med., Inc. v. Allegro Med., FA
95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no bona fide use where Respondent
used the domain name to divert Internet users to its competing website).
There is
no evidence on record that Respondent is commonly known as AMERICA WEST
AIRLINE, AMERICA WEST AIRLINES, <america-west-airline.com> or <america-west-airlines.com>. Respondent is only known to the Panel as
“Travel Reservations Network.” Thus,
the Panel finds that Respondent does not have rights or legitimate interests in
the disputed domain names 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 Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23,
2001) (finding that Respondent does not have rights in a domain name when Respondent
is not known by the mark).
Accordingly,
the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The <america-west-airline.com>
or <america-west-airlines.com> domain names lead to a website
entitled “America West Airline-Fares Flights and Schedules,” which offers
services identical to those available on Complainant’s <americawest.com>
website. Respondent is using the two
confusingly similar domain names to divert Internet users to a website that
competes with Complainant’s services.
This behavior is evidence of bad faith registration and use pursuant to
Policy ¶ 4(b)(iii) because it is a disruption of Complainant’s business. See Lubbock Radio Paging v. Venture Tele-Messaging, FA 96102 (Nat.
Arb. Forum Dec. 23, 2000) (concluding that domain names were registered and
used in bad faith where Respondent and Complainant were in the same line of
business in the same market area); see also S. Exposure v. S. Exposure, Inc., FA
94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by
attracting Internet users to a website that competes with Complainant’s
business).
Respondent is
using the disputed domain names to divert Internet users to Respondent’s own
website for Respondent’s commercial gain.
The use of domain names confusingly similar to Complainant’s marks for
commercial gain evidences bad faith registration and use. See G.D. Searle & Co. v. Celebrex
Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that
Respondent registered and used the domain name in bad faith pursuant to Policy
¶ 4(b)(iv) because Respondent was using the confusingly similar domain name to
attract Internet users to its commercial website); see also Kmart v.
Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent
profits from its diversionary use of Complainant's mark when the domain name
resolves to commercial websites and Respondent fails to contest the Complaint,
it may be concluded that Respondent is using the domain name in bad faith pursuant
to Policy ¶ 4(b)(iv)).
Thus, the Panel
finds that Policy ¶ 4(a)(iii) has been satisfied.
Having
established all three elements required under ICANN Policy, the Panel concludes
that relief shall be GRANTED.
Accordingly, it
is Ordered that the <america-west-airlines.com> and
<america-west-airline.com> domain name be TRANSFERRED from
Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated:
March 26, 2003
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