Alaska Air Group, Inc. and its Subsidiary, Alaska Airlines v. PPA Media Services / Ryan G Foo
Claim Number: FA1301001482119
Complainant is Alaska Air Group, Inc. and its Subsidiary, Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is PPA Media Services / Ryan G Foo (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alasakaair.com>, <alascaairlines.com>, <alaskaaielines.com>, <alaskaailines.com>, <alaskaaire.com>, <alaskaairl.com>, <alaskaairlanes.com>, <alaskaarilines.com>, and <alaskaiarlines.com>, registered with Internet.Bs Corp.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 25, 2013; the National Arbitration Forum received payment on January 25, 2013.
On January 31, 2013, Internet.Bs Corp. confirmed by e-mail to the National Arbitration Forum that the <alasakaair.com>, <alascaairlines.com>, <alaskaaielines.com>, <alaskaailines.com>, <alaskaaire.com>, <alaskaairl.com>, <alaskaairlanes.com>, <alaskaarilines.com>, and <alaskaiarlines.com> domain names are registered with Internet.Bs Corp. and that Respondent is the current registrant of the names. 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 February 7, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 27, 2013 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@alasakaair.com, postmaster@alascaairlines.com, postmaster@alaskaaielines.com, postmaster@alaskaailines.com, postmaster@alaskaaire.com, postmaster@alaskaairl.com, postmaster@alaskaairlanes.com, postmaster@alaskaarilines.com, and postmaster@alaskaiarlines.com. Also on February 7, 2013, 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 March 12, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <alasakaair.com>, <alascaairlines.com>, <alaskaaielines.com>, <alaskaailines.com>, <alaskaaire.com>, <alaskaairl.com>, <alaskaairlanes.com>, <alaskaarilines.com>, and <alaskaiarlines.com> domain names are confusingly similar to Complainant’s ALASKA AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <alasakaair.com>, <alascaairlines.com>, <alaskaaielines.com>, <alaskaailines.com>, <alaskaaire.com>, <alaskaairl.com>, <alaskaairlanes.com>, <alaskaarilines.com>, and <alaskaiarlines.com> domain names.
3. Respondent registered and used the <alasakaair.com>, <alascaairlines.com>, <alaskaaielines.com>, <alaskaailines.com>, <alaskaaire.com>, <alaskaairl.com>, <alaskaairlanes.com>, <alaskaarilines.com>, and <alaskaiarlines.com> domain names in bad faith.
B. Respondent failed to submit a timely Response in this proceeding.
Complainant is the owner of the United States Patent and Trademark Office (“USPTO”) registration for the ALASKA AIRLINES mark (Reg. No. 1,561,416 registered Oct. 17, 1989).
Respondent registered the disputed domain names as follows:
a. the <alasakaair.com> domain name on November 19, 2005;
b. the <alascaairlines.com> domain name on October 2, 2005;
c. the <alaskaaielines.com> domain name on February 7, 2005;
d. the <alaskaailines.com> domain name on June 17, 2000;
e. the <alaskaaire.com> domain name on May 8, 2004;
f. the <alaskaairl.com> domain name on November 26, 2001;
g. the <alaskaairlanes.com> domain name on October 10, 2004;
h. the <alaskaarilines.com> domain name on October 6, 2004; and
i. the <alaskaiarlines.com> domain name on October 3, 2005.
Respondent uses the disputed domain names to generate revenue as a “click through” website that directly competes with Complainant.
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 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.
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.”).
Preliminary Issue: Multiple Complainants
The relevant rules governing multiple complainants are UDRP Rule 3(a) and the National Arbitration Forum’s Supplemental Rule 1(e). UDRP Rule 3(a) states, “Any person or entity may initiate an administrative proceeding by submitting a complaint.” The National Arbitration Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
There are two Complainants in this matter: Alaska Air Group, Inc. and its Subsidiary, Alaska Airlines. Complainant states that Alaska Airlines is a subsidiary of Alaska Air Group, Inc. Complainants argue that they own the ALASKA AIRLINES mark and enjoy widespread consumer recognition of the mark.
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Nat. Arb. Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Nat. Arb. Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Nat. Arb. Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark.
The Panel accepts that there is a sufficient nexus between the Complainants, and elects to treat them as a single entity in this proceeding. Complainants will be collectively referred to as “Complainant” throughout this decision.
The Panel finds that Complainant has rights in the ALASKA AIRLINES mark pursuant to Policy ¶ 4(a)(i), based on its registration with the USPTO. Panels routinely find that registration of a mark with a federal trademark authority, regardless of the location of the parties, is evidence of rights in a mark. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <alasakaair.com>, <alascaairlines.com>, <alaskaaielines.com>, <alaskaailines.com>, <alaskaaire.com>, <alaskaairl.com>, <alaskaairlanes.com>, <alaskaarilines.com>, and <alaskaiarlines.com> domain names are confusingly similar to the ALASKA AIRLINES mark, since they are simply misspellings of Complainant’s mark. The disputed domain names all differ from Complainant’s mark by a misspelling of one to five letters, the addition of a gTLD, and the elimination of the space in the mark. None of these changes are sufficient to distinguish the disputed domain names form Complainant’s mark. The panel in Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007), held that spaces and gTLDs are irrelevant to a Policy ¶ 4(a)(i) analysis. Additionally, the panel in Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000), held that misspelling a mark does not differentiate the domain name from the mark within it.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. 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 UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent 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 contends that Respondent is not commonly known by the disputed domain names. The WHOIS records list “PPA Media Services / Ryan G Foo” as the registrant of the disputed domain names. Complainant states that it has not licensed, authorized, or permitted Respondent to use the ALASKA AIRLINES mark, and Respondent is not sponsored by or affiliated with Complainant. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant claims that the disputed domain names are used in connection with generating revenue as competing “click through” websites. Panels have previously held that, where a Respondent uses a domain name to display links that offer goods and services in competition with the complainant’s offerings, the respondent demonstrates a lack of rights and legitimate interests. 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)). Thus, the Panel finds that Respondent’s use of the disputed domain names is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts that Respondent has established a pattern of bad faith by registering domain names containing trademarks owned by others. Respondent has been subject to numerous adverse UDRP holdings. See Am. Sports Licensing, Inc. v. PPA Media Servs. / Ryan G Foo, FA 1426016 (Nat. Arb. Forum Mar. 2, 2012); see also Rodney Cobb Chevrolet v. PPA Media Servs. / Ryan G Foo, FA 1461908 (Nat. Arb. Forum Oct. 23, 2012); see also Google Inc. v. PPA Media Servs. / Ryan G Foo, FA 1468207 (Nat. Arb. Forum Dec. 12, 2012). Previous panels have found that multiple adverse UDRP rulings against a respondent are evidence of a pattern of bad faith, supporting a bad faith finding in the current case. See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants). Therefore, the Panel finds that Respondent has developed a pattern of bad faith and finds bad faith in Respondent’s registration and use of the disputed domain names under Policy ¶ 4(b)(ii).
Complainant next alleges that the links that Respondent displays on the disputed domain names divert potential customers away from Complainant to third party websites, disrupting Complainant’s business. The Panel agrees and finds that this demonstrates bad faith pursuant to Policy ¶ 4(b)(iii). In Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006), the panel held that the display of competitive links on a disputed domain name is disruptive to the respective complainant’s business.
Respondent uses the disputed domain names to divert Internet users to its click-through websites in order to generate revenue for Respondent, taking advantage of Complainant’s well-known mark and achieving a wrongful competitive advantage. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Respondent’s intentional misspelling of Complainant’s ALASKA AIRLINES mark is typosquatting, further evidence of bad faith. Panels have found that misspelling a mark in a domain name is a classic example of typosquatting and bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alasakaair.com>, <alascaairlines.com>, <alaskaaielines.com>, <alaskaailines.com>, <alaskaaire.com>, <alaskaairl.com>, <alaskaairlanes.com>, <alaskaarilines.com>, and <alaskaiarlines.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 18, 2013
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