national arbitration forum

DECISION

Alaska Air Group, Inc., and its subsidiary, Alaska Airlines v. W. D. Group Ltd.

Claim Number: FA1302001484266

PARTIES

Complainant is Alaska Air Group, Inc., and its subsidiary, Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is W. D. Group Ltd. (“Respondent”), China.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <alaskanairlines.com>, registered with TUCOWS INC.

PANEL

The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

Houston Putnam Lowry, Chartered Arbitrator, as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on February 8, 2013; the National Arbitration Forum received payment on February 8, 2013.

On February 8, 2013, TUCOWS INC. confirmed by e-mail to the National Arbitration Forum that the <alaskanairlines.com> domain name is registered with TUCOWS INC. and that Respondent is the current registrant of the names. TUCOWS INC. has verified that Respondent is bound by the TUCOWS 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 February 20, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 12, 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@alaskanairlines.com. Also on February 20, 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 25, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A. Complainant

Complainant’s ALASKAAIRLINES.COM Mark

[i.] Alaska Airlines for air Transportation services (U.S Reg. 1,561,416); First Use In Commerce: 19420600

Complainant is the owner of the federal trademark registrations in the United States that consist of the words ALASKA AIRLINES. The registrations are referred to hereafter as the "Complainant's Mark”.

FACTUAL AND LEGAL GROUNDS
This Complaint is based on the following factual and legal grounds:

Alaska Air Group, Inc. and its subsidiary, Alaska Airlines (NYSE: ALK) is an airline based in the Seattle suburb of SeaTac, Washington, United States. Classified as a major carrier, Alaska operates hubs at Seattle-Tacoma International Airport, Ted Stevens Anchorage International Airport, and Portland International Airport.

It also operates a secondary hub and Mexican gateway at Los Angeles International Airport. Alaska's route system spans more than 92 cities in the United States, Canada, and Mexico.

Alaska Airlines and its sister carrier Horizon Air are both subsidiaries of Alaska Air Group. Horizon Air is owned by the same parent company, Alaska Air Group. Formed in 1978, Horizon Air currently employs 4,000 employees and serves more than 45 cities in Arizona, California, Colorado, Idaho, Montana, Nevada, Oregon, Washington, British Columbia, and Alberta. The company is recognized as one of the leading regional airlines in the country and holds the highest rank of all regional airlines in Condé Nast Traveler Magazine's Readers Choice Awards list.

Furthermore, Alaska Air Group, Inc. and its subsidiary, Alaska Airlines owns the Marks citied above for which it has obtained federal trademark registrations. The federal trademark registrations have not been abandoned, cancelled, or revoked.

Alaska Air Group, Inc. and its subsidiary, Alaska Airlines enjoys widespread consumer recognition and has spent millions of dollars in advertisement and promotion of the Marks on the Internet through its website located at alaskaairlines.com.

Based on its federal trademark registrations and extensive use, Alaska Air Group, Inc. and its subsidiary, Alaska Airlines owns the exclusive right to use the Marks in connection with air transportation services and online travel, information and reservation services.

[a.]

The Disputed Domain Name(s) are nearly identical and confusingly similar to Complainant's Marks.

By virtue of its federal trademark and/or service mark registration(s), Complainant is the owner of the Complainant's Mark(s). See, e.g., United Way of America v. Alex Zingaus, NAF Claim No. FA0707001036202 ("Panels have long recognized Complainant's registration of a mark with a trademark authority is sufficient to confer rights in the mark pursuant to Policy 4(a)(i)"). )"). As in other cases, it is also important to note that it is irrelevant for the purposes of Policy ¶4(a)(i) whether Complainant registered the mark in the country where Respondent operates or resides. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that a mark be registered in the country in which a respondent operates, it being sufficient that a complainant can demonstrate rights in a mark in some jurisdiction).

ii.

iii.

When comparing the Disputed Domain Name(s) to the Complainant's Mark(s), the relevant comparison to be made is between only the second-level portion of the Disputed Domain Name(s) and the Complainant's Mark(s). See Rollerblade, Inc. v. McCrady, WIPO Case No.D2000-0429 (finding that the top-level domain, such as ".net" or ".com", does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., NAF Claim No. FA0304000153545 ("[t]he addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.")

Respondent may contend that the Disputed Domain Name(s) is/ are comprised of common, descriptive or generic terms and as such cannot be identical to Complainant’s mark. However, such a determination is not necessary under Policy ¶4(a)(i). This portion of the Policy considers only whether Complainant has rights in the mark and whether the disputed domain name is identical or confusingly similar to Complainant’s mark. See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 7, 2007) (finding that because the complainant had received a trademark registration for its VANCE mark, the respondent’s argument that the term was generic failed under Policy ¶4(a)(i)); see also David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (“Respondent’s argument that each individual word in the mark is unprotectable and therefore the overall mark is unprotectable is at odds with the anti-dissection principle of trademark law.”). See past UDRP decisions where the panel has decided in favor of the Complainant’s mark, The Knot, Inc. v. Privacy Ltd. Disclosed Agent for YOLAPT, NAF: FA1010001350443.

iv.

The Disputed Domain Name(s) (is/are) confusingly similar to Complainant's Mark(s) because (it/they) differ(s) by only a single character from Complainant's Mark(s), or because it differs by only the juxtaposition of two characters when compared to Complainant's Mark(s). For clarification, the Disputed Domain Name(s) contain(s) either:

[i.] the addition of one extra character, or...
[ii.] the removal of one character, or...
[iii.] one character which is incorrect, or...
[iv.] two juxtaposed characters

as compared to Complainant's Mark(s).

The Disputed Domain Name(s) (is/are), simply put, a classic example of "typosquatting". The practice of typosquatting is designed to take advantage of Internet users' typographical errors, which means the names must be confusingly similar by design. See Reuters Ltd. v. Global Net 2000, Inc., WIPO Case No. D2000-0441 (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); Caterpillar Inc. v. Center for Ban on Drugs, NAF Claim No. FA0603000661437 ("the omission of a single letter from Complainant's mark does not adequately distinguish the Disputed Domain Name from the mark"); and Victoria's Secret v. Zuccarini, NAF Claim No. FA0010000095762 (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant's marks).

[b.]

Respondent has no rights or legitimate interests in respect of the Disputed Domain Name(s) for the following reasons:

Respondent has not been commonly known by the Disputed Domain Name(s). See Policy, ¶4(c)(ii). See WHOIS record for the Disputed Domain Name(s). Where, as here, "the WHOIS information suggests Respondent is known as" an entity other than the trademark associated with Complainant, and Complainant has not "licensed, authorized, or permitted Respondent to register domain names incorporating Complainant's... mark," a Panel should find that the Respondent is not commonly known by the Disputed Domain Name. United Way of America v. Alex Zingaus, NAF Claim No. FA0707001036202.

Respondent is not sponsored by or legitimately affiliated with Complainant in any way.

Complainant has not given Respondent permission to use Complainant's Mark in a domain name.

A "Cease and Desist" letter was sent to the Respondent. The letter informed the Respondent that it was infringing on Complainant's IP rights and allowed the Respondent the opportunity to respond if they have any IP rights. The Respondent was provided with the information of the Complainant's trademark(s), hence showing proof that the Complainant has rights to the brand(s). To date, no reply has been received from Respondent. 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, WIPO Case No. D2000-0009 (WIPO Feb. 29, 2000("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint."). Also in WIPO case ACCOR v. Pham Manh Ha, Case No. D2007-1855, the panel found that the evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name.

Respondent has ignored Complainant's attempts to resolve the dispute outside of this administrative proceeding. Complainant notes that if the owner of the Disputed Domain Name(s) fails to respond to this Complaint, it is presumed that the owner has no rights or legitimate interests in the Disputed Domain Name(s). See Mattel, Inc. v. RaveClub Berlin, FA106115 (Nat. Arb. Forum May 8, 2002), citing Pavillion Agency, Inc.

Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents' failure to respond can be construed as an admission that they have no legitimate interest in the domain names). Further, Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) states that when "the complainant has made a prima facie showing, the burden of production shifts to the respondent to show by providing concrete evidence that it has rights to or legitimate interest in the domain name at issue."

The Respondent is currently using the Disputed Domain Name to operate an inactive website. Such inactive use is also not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶4(c)(i), or a legitmate noncommercial or fair use of the disputed domain name pursuant to Policy ¶4(c)(iii). See Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where a respondent advanced no basis on which a panel could conclude that it had a right or legitimate interest in domain names, and no commercial use of the domain names was established); see also Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or service or develop a site demonstrates that a respondent had not established rights or legitimate interests in a domain name).

The earliest date on which Respondent registered the Disputed Domain Name(s) was May 30, 2000, which is significantly after Complainant's first use in commerce, June, 30, 1942, as specified in their relevant registration with the USPTO.

The earliest date on which Respondent registered the Disputed Domain Name(s) was May 30, 2000, which is significantly after Complainant's registration of their relevant Marks with the USPTO on October 17, 1989.

The earliest date on which Respondent registered the Disputed Domain Name(s) was May 30, 2000, which is significantly after Complainant's registration of ALASKAAIRLINES.COM on July 10, 1997.

[c.]

The Domain Name(s) should be considered as having been registered and being used in bad faith for the following reasons:

Respondent's typosquatting behavior is, in and of itself, evidence of bad faith. See Canadian Tire Corp. v. domain adm'r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding the respondent registered and used the domain name in bad faith because the respondent created a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's web site or location'.. . through Respondent's persistent practice of 'typosquatting'"); see also Nat'l Ass'n of Prof'l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) ("Typosquatting ... is the intentional misspelling of words with [the] intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.").

ii.

iii.

As mentioned above, although the Disputed Domain Name(s) is currently an inactive site, in past cases the Panel noted that the word "use" in this context does not require a positive act on the part of the Respondent; passively holding a domain name can constitute use in bad faith. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) ("[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith"); Alitalia-Linee Aeree Italiane S.P.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the Respondent made no use of the domain name in question and there are no other indications that the Respondent could have registered and used the domain name in question for any non-infringing purpose); Nike, Inc. v. Coleman, D2000-1120 (WIPO Nov. 6, 2000) (same).In this case, the Respondent has made no use of the Disputed Domain Name(s) in question.

We are persuaded from the evidence that Respondent is making an inactive use of the <ashleyrfurniture.com> domain name, as alleged in the Complaint, and that, in the circumstances here presented, such use demonstrates that the do-main name was registered and is being used in bad faith. See, for example, DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that a respondent’s failure to make an active use of a contested domain name satisfied the requirements of ¶4(a)(iii) of the Policy for demonstrating bad faith in the registration and use of the domain name).

While Complainant argues that Respondent registered and is using the disputed domain names in bad faith, Complainant’s arguments do not fall into one of the Policy ¶4(b) illustrations of bad faith under the UDRP. However, the Panel is not bound by the four Policy ¶4(b) factors in evaluating whether Respondent has registered and is using the disputed domain names in bad faith under Policy ¶4(a)(iii). 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.”).

The Complainant is convinced that the Respondent knew of Complainant and its rights in the ALASKA AIRLINES trademark when it registered the Disputed Domain Name(s). A simple Google search on the term will result in the Complainant’s mark and website. This stands as proof of bad faith registration of the domain name. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith registration of a domain name where a respondent was "well-aware” of a UDRP complainant's YAHOO! mark at the time of the domain name’s registration). See also Ashley Furniture Industries, Inc. v. TheoMedia / Greg Theo, NAF Claim Number: FA1212001475534.

B. Respondent

Respondent failed to submit a Response in this proceeding.

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. Alaska Airlines is the subsidiary of Alaska Air Group, Inc.

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 Organizing Committee for the 2010 Olympic and Paralymic Games and International Olympic Committee v. Hardeep 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 Investments, 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 American Family Health Services 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. But see AmeriSource Corp. v. Park, FA 99134 (Nat. Arb. Forum Nov. 5, 2001) (“This Panel finds it difficult to hold that a domain name that may belong to AmerisourceBergen Corporation (i.e., the subject Domain Names) should belong to AmeriSource Corporation because they are affiliated companies.”).

The evidence in the Complaint establishes a sufficient nexus or link between the Complainants, allowing the Panel to treat them all as a single entity in this proceeding.

FINDINGS

(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.

DISCUSSION

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 Complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:

(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.”).

Identical and/or Confusingly Similar

Complainant, Alaska Air Group, Inc., and its subsidiary, Alaska Airlines, contend it is an airline based in the Seattle suburb of SeaTac, Washington, United States. Complainant claims it operates hubs at Seattle-Tacoma International Airport, Ted Stevens Anchorage International Airport, and Portland International Airport. Complainant claims it enjoys widespread consumer recognition and has spent millions of dollars in advertisement and promotion of the mark on the Internet through its website located at <alaskaairlines.com>. Complainant is the owner of trademark registrations with the USPTO for the ALASKA AIRLINES mark (e.g., Reg. No. 1,561,416, registered October 17, 1989). Despite Respondent’s location as listed outside of the country in which the ALASKA AIRLINES mark is registered, Complainant’s demonstration of rights in the ALASKA AIRLINES mark satisfies the required showing of Policy ¶4(a)(i). Complainant need not have registered its mark in Respondent’s country. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶4(a)(i); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).

Complainant claims Respondent’s <alaskanairlines.com> domain name is confusingly similar to Complainant’s ALASKA AIRLINES mark because it differs by only a single character from Complainant’s mark; by adding the letter “n” to the disputed domain name. The addition of a single letter to the domain name in this context does not adequately distinguish Respondent’s domain name from Complainant’s mark under Policy ¶4(a)(i). See Amazon.com, Inc. v. Ikhizamah, D2002-1168 (WIPO Mar. 17, 2003) (holding that the <zamazon.com> domain name was confusingly similar to the complainant’s AMAZON.COM mark). Respondent also removes the space in Complainant’s ALASKA AIRLINES and adds the generic top-level domain (“gTLD”) “.com.” The elimination of spaces between terms and the addition of a gTLD does nothing to establish distinctiveness between Respondent’s domain name from Complainant’s mark pursuant to Policy ¶4(a)(i) because spaces are prohibited characters in domain names and gTLDs (or ccTLDs) are required domain name elements. See U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and 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).”). Consequently, the Panel finds Respondent’s <alaskanairlines.com> domain name is confusingly similar to Complainant’s ALASKA AIRLINES mark under Policy ¶4(a)(i).

The Panel finds Policy ¶4(a)(i) satisfied.

Rights or Legitimate Interests

Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has 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 claims Respondent has not been commonly known by the disputed domain name. The WHOIS information for the disputed domain name identifies “W. D. Group Ltd.” as the registrant (after the privacy registration was revealed during this proceeding). The two seem obviously different to this Panel and Respondent does not contend otherwise. Complainant claims Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant has not given Respondent permission to use Complainant’s mark in a domain name. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name under 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).

Complainant claims Respondent is currently using the disputed domain name to operate an inactive website. According to the screenshots provided, Respondent’s <alaskanairlines.com> domain name resolves to a website saying “Server not found.” Complainant argues such inactive use is not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶4(c)(iii). This Panel agrees and finds Respondent’s inactive use of the domain name is not a Policy ¶4(c)(i) bona fide offering of goods or services or a Policy ¶4(c)(iii) legitimate noncommercial or fair use. See Hewlett-Packard Co. v. Shemesh, FA 434145 (Nat. Arb. Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶4(c)(iii).”).

Furthermore, Respondent cannot obtain any rights to the domain name in a commercial context while it is being held by a third party nominee rather than in Respondent’s name (a so-called “privacy” registration).

The Panel finds Policy ¶4(a)(ii) satisfied.

Registration and Use in Bad Faith

Complainant admits its arguments do not fall into any one of the Policy ¶4(b) illustrations under the UDRP. Complainant claims the Panel is not bound by the four Policy ¶4(b) factors in determining whether Respondent has registered and is using the disputed domain names in bad faith under Policy ¶4(a)(iii). The examples of bad faith in Paragraph 4(b) are intended to be illustrative rather than exclusive. See Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence).

Respondent’s disputed domain name is currently an inactive site. Respondent’s <alaskanairlines.com> domain name resolves to a website saying “Server not found.” Respondent’s failure to make an active use of the disputed domain name (without more) does not demonstrate bad faith use and registration under Policy ¶4(a)(iii). See 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). While Complainant could have made a variety of arguments that have persuaded other panels on this point, it chose not to (presumably because it couldn’t make them in good faith). The Panel commends and accepts Complainant’s restraint.

Complainant claims typosquatting adequately demonstrates bad faith registration and use. This Panel disagrees. The UDRP requires more.

In this case, there is more. This Panel has repeatedly found registering a domain name in a commercial context using a privacy service raises the rebuttable presumption of bad faith registration and use. Respondent did nothing to rebut this presumption. Based upon this alone, the Panel finds bad faith registration and use of the domain name.

The Panel finds Policy ¶4(a)(iii) satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.

Accordingly, it is Ordered the <alaskanairlines.com> domain name be TRANSFERRED from Respondent to Complainant.

Houston Putnam Lowry, Chartered Arbitrator, Panelist

Dated: Wednesday, April 17, 2013