American Airlines, Inc. v. yayah kandiyah
Claim Number: FA1303001488351
Complainant is American Airlines, Inc. (“Complainant”), represented by Leonard Searcy of Shook, Hardy & Bacon, Missouri, USA. Respondent is yayah kandiyah (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwjetnetaa.com>, registered with ENOM, 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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 3, 2013; the National Arbitration Forum received payment on March 5, 2013.
On March 5, 2013, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <wwwjetnetaa.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, 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 March 6, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 26, 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@wwwjetnetaa.com. Also on March 6, 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 April1, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed The Honourable Neil Anthony Brown QC 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
Complainant made the following contentions.
1. Complainant is a United States company engaged in the business of air transportation and related goods and services and is one of the world’s largest and most famous airlines.
2. Among other trademarks, Complainant is the owner of the registered trademark AA®.
3. Complainant is also the owner of the common law trademark JETNETAA™.
4. Complainant uses those two trademarks extensively on the Internet to conduct its business, as it also does with its websites at www.aa.com, www.jetnet.aa.com, and www.jetnetaa.com.
5. The disputed domain name <wwwjetnetaa.com> is confusingly similar to Complainant’s AA® mark because the domain name incorporates the entire AA® mark, merely adding the term “wwwjetnet” preceding the trademark and adding the generic top-level domain (“gTLD”) “.com.”
6. The domain name is also confusingly similar to Complainant’s JETNETAA™ mark because the domain name incorporates the entire JETNETAA™ mark and merely adds the letters “www” preceding the trademark and adding the generic top-level domain (“gTLD”) “.com.”
7. The disputed domain name is confusing and misleading and
causes confusion to consumers and to Complainant’s employees who are diverted away from Complainant’s websites at <aa.com>, <jetnet.aa.com>, or <jetnetaa.com>, where Internet users can purchase air transportation and other services from Complainant, and employees can conduct
employer/employee business.
8. Respondent has no rights or legitimate interests in the disputed domain name as:
(a) no available evidence suggests that Respondent has ever been commonly known by the disputed domain names;
(b) Complainant has not licensed or otherwise permitted Respondent to use any of Complainant’s marks or to apply for or use any domain name incorporating any of Complainant’s marks including Complainant’s famous AA® and JETNETAA™ marks;
(c) Respondent has not and does not use the disputed domain name in
Connection with a bona fide offering of goods or services;
(d) At Respondent’s website, users are asked to provide pertinent employee information such as employee identification, login, and password. After providing this information, a virus is placed on the user’s computer;
(d) the construction of the domain name is conduct that amounts to typosquatting;
(e) the process of impersonating Complainant and phishing for
users’ information is not making a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use of the domain name pursuant to Policy 4 (c)(iii); and
(f) Respondent intentionally intended to create an association with Complainant when no such association exists.
9. Respondent Has Registered and Is Using the Disputed Domain Name in Bad Faith as:
(a) The above factors support a conclusion that Respondent registered the domain name <wwwjetnetaa.com> for the primary purpose of defrauding and damaging Complainants employees by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation or endorsement of Respondent’s website or of a product or service on Respondent’s website;
(b) The Respondent’s use of the confusingly similar domain in a phishing scheme is in bad faith;
(c) Respondent is disrupting Complainant’s business by impersonating American Airlines, Inc. with a website to conduct a phishing scheme at a domain name that is confusingly similar to Complainant’s marks and looks like an exact copy of Complainant’s websites at <jetnet.aa.com> and <jetnetaa.com>under Policy ¶ 4(b)(iv);
(d) Respondent’s attempt to pass off <wwwjetnetaa.com> as being affiliated with American Airlines, Inc. constitutes disruption and bad faith registration and use under Policy ¶ 4(b)(iii);
(e) Respondent had knowledge of Complainant’s marks and intended to deceive users into thinking that the website at the disputed domain name was affiliated with American Airlines;
(f) Respondent appears to have chosen the disputed domain name to engage in typosquatting in order to attract users of Complainant’s websites at <jetnet.aa.com> and <jetnetaa.com>.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant, American Airlines, Inc. is engaged in the business of air transportation and related goods and services and is one of the world’s largest airlines.
2. Among other trademarks and service marks, Complainant is the owner of the registered service mark AA® (“the AA® mark”) and the common law mark JETNETAA™ (“the common law mark JETNETAA™”) which it uses extensively on the Internet to conduct its business, as it also does with its website at www.jetnetaa.com.
3. Respondent registered the disputed domain name on November 24, 2012. It has been used to resolve to a website that is a copy of Complainant’s own websites and where users are asked to provide pertinent information such as employee identification, login, and password and where, after providing this information, a virus is placed on the user’s computer.
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.”).
The first question that arises is whether Complainant has rights in a trademark or service mark. Complainant argues that it has rights in the registered trademark AA® and the common law trademark JETNETAA™. The evidence is that among other registered trademarks and service marks registered over many years by Complainant , on August 23, 1949 it registered the AA® service mark, Registered No.514, 292 with the United States Patent and Trademark Office (“USPTO”). Complainant submits printouts from the USPTO website to support its claims regarding registration of the AA® mark. Based upon the registrations provided, the Panel finds that Complainant has established its rights in the AA® mark under Policy ¶ 4(a) (i). See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO). The Panel also finds that Complainant has established common law trademark rights to JETNETAA™ as it has been shown by the unchallenged evidence to be the source of goods and services offered by Complainant.
The second question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s registered trademark AA® and its common law trademark JETNETAA™. Complainant argues that Respondent’s <wwwjetnetaa.com> domain name is confusingly similar to both trademarks and the Panel finds this is so. The Panel notes that the disputed domain name includes the generic top-level domain (“gTLD”) “.com” but that this is irrelevant for present purposes. The Panel finds in addition that the disputed domain name <wwwjetnetaa.com> is confusingly similar to the AA® mark because the domain name incorporates the entire mark, merely adding the term “wwwjetnet” preceding the trademark and that the domain name is also confusingly similar to the common law trademark JETNETAA™ because the domain name incorporates the entire mark and merely adds the letters “www” preceding the trademark and adding the generic top-level domain (“gTLD”) “.com”. On the first analysis, internet users would naturally assume that the domain name was associated with Complainant, as the AA® mark is widely associated with Complainant and the additions simply reinforce that assumption because of the use of the word”jet”, connoting jet airliners and the use of the words “net” as well as the letters “www” connoting that bookings and other matters relating to airlines are widely utilised on the internet. On the second analysis, internet users would come to the same conclusion because of the use of the common law trademark JETNETAA™ and its association with Complainant. Accordingly, as Respondent failed to differentiate the disputed domain name from the registered trademark AA® and the common law trademark JETNETAA™, the Panel finds that the disputed domain name is confusingly similar to both of Complainant’s marks under Policy ¶ 4(a) (I). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis) and Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (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).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a) (ii), and then 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. Arab. 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. Gerber, FA 780200 (Nat. Arab. 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.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a)Respondent has chosen to take Complainant’s registered trademark AA® and its common law trademark JETNETAA™ and used them to create a domain name which adds the term “wwwjetnet” before the AA® mark and at the same time adds the letters “www” before the JETNETAA™ trademark;
(b) Respondent has used the domain name in a highly improper way, by causing it to resolve to a website where users are asked to provide pertinent employee information such as employee identification, login, and password and, after providing this information, a virus is placed on the user’s computer;
(c) Respondent has engaged in these activities without the consent or approval of Complainant;
(d) no available evidence suggests that Respondent has ever been commonly known by the disputed domain names. Respondent adduces evidence to show that the WHOIS information demonstrates that Respondent, WhoisGuard, is not commonly known by the disputed domain name. Therefore, pursuant to Policy ¶ 4(c)(ii), Respondent lacks rights and legitimate interests in the disputed domain name, which has been well established by many UDRP decisions, including the case cited by Complainant: M. Shanken Commc’ns v.WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record);
(e) the evidence, which Respondent has not contradicted, is that at Respondent’s website, users are asked to provide pertinent employee information such as employee identification, login, and password. and that after providing this information, a virus is placed on the user’s computer, On that basis Complainant has submitted that Respondent is not making a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use of the domain name pursuant to Policy 4 (c)(iii). The Panel agrees with that submission and the grounds on which it is put;
(f) Complainant also argues that this is a case of typosquatting. The Panel finds that the addition of the letters “www” to create the domain name trades on possible mistakes made by internet users in typing the address of Complainant’s own domain names and negates any notion of the Respondent having a right or legitimate interest in the disputed domain name;
(g) on the unchallenged evidence there is no other basis on which it could be said that Respondent has a right or legitimate interest in the disputed domain name.
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant has argued that the facts disclosed by the evidence support a conclusion that Respondent registered the domain name <wwwjetnetaa.com> for the primary purpose of defrauding and damaging Complainant’s employees by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation or endorsement of Respondent’s website or of a product or service on Respondent’s website. The Panel agrees with that conclusion as the evidence is so overwhelming that it brings the case squarely within the provisions of Policy ¶ 4(b)(iv)”). See State Farm Mutual Automobile Insurance Company v. Pongphap Awoopsopa, FA1163684 (Nat. Arb. Forum May 1, 2008) (finding that Respondent’s disputed domain names are capable of creating a likelihood of confusion as to Complainant’s sponsorship and affiliation with the disputed domain names and corresponding websites).
Secondly, Complainant argues both that Respondent’s use of the confusingly similar domain name in a phishing scheme is itself in bad faith and that
as Respondent is disrupting Complainant’s business by impersonating American Airlines, Inc. with a website to conduct a phishing scheme at a domain name that is confusingly similar to Complainant’s marks and one that looks like an exact copy of Complainant’s websites at <jetnet.aa.com> and <jetnetaa.com>, this also is conduct coming within under Policy ¶ 4(b)(iv). See Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellbankupdate.com> domain name in order to acquire the personal and financial
information of the complainant’s customers fraudulently); and Juno Online Servs., Inc. v. Nelson, FA0241972 (Nat. Arb. Forum Mar. 29, 2004) (finding a domain name to be registered and used in bad faith under Policy ¶ 4(b)(iv) because it was being used for “fraudulent purposes”). The Panel agrees with this conclusion and so finds.
Thirdly, it also becomes clear from the evidence that Respondent’s attempt to pass off the disputed domain name <wwwjetnetaa.com> as being affiliated with American Airlines, Inc. constitutes disruption and bad faith registration and use under Policy ¶ 4(b)(iii). The Panel agrees with this submission and so finds. See The Exploratorium v. port80cafe, FA1269220 (Nat. Arb. Forum Aug. 4, 2009) (finding that passing oneself off as being affiliated with a complainant constitutes bad faith registration and use); see also American Int’l Group,Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003).
Fourthly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed domain name using the AA® mark and the common law JETNETAA™ trademark and in view of the conduct that Respondent engaged in when using the domain name, Respondent registered and used the disputed domain name in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwjetnetaa.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: April 8, 2013
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