Alaska Air Group, Inc., and its subsidiary, Alaska Airlines v. Private Whois Service
Claim Number: FA1303001488941
Complainant is Alaska Air Group, Inc., and its subsidiary, Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Private Whois Service (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue is <akaskaair.com> and <alskaair.com>, registered with Fabulous.com Pty Ltd.
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 7, 2013; the National Arbitration Forum received payment on March 7, 2013.
On March 8, 2013, Fabulous.com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <akaskaair.com> and <alskaair.com> domain names are registered with Fabulous.com Pty Ltd and that Respondent is the current registrant of the names. Fabulous.com Pty Ltd has verified that Respondent is bound by the Fabulous.com Pty Ltd 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 8, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 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@akaskaair.com, postmaster@alskaair.com. Also on March 8, 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 April 5, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant made the following contentions.
1. Alaska Air Group, Inc. and its subsidiary, Alaska Airlines (NYSE: ALK) is an airline based in the Seattle suburb of SeaTac, Washington, United States.
2. Complainant owns the ALASKA AIRLINES trademark registered with the United States Patent and Trademark Office (”USPTO “) for air transportation services (U.S Reg. 1,561,416) (“the ALASKA AIRLINES mark”).
3. The disputed domain names are confusingly similar to the trademark because this is a case of minor spelling alterations and typosquatting;
4. Respondent has no rights or legitimate interests in the domain names as:
(a) Respondent has not been commonly known by the domain names;
(b) Respondent is using the domain names to redirect internet users to a website featuring generic links to third party websites, some of which directly compete with Complainant’s business;
(c) As such, Respondent is not using the domain names to provide a bona fide offering of goods or services as allowed under Policy; 4(c)(i), nor a legitimate noncommercial or fair use as allowed under Policy; 4(c)(iii).
5. The disputed domain names have been registered and used in bad faith as:
(a) Respondent's typosquatting behavior is, in and of itself, evidence of bad faith.
(b) Respondent's bad faith is further shown by the Respondent using the disputed domain names’ website in connection with generating revenue as a "click through" website, by using the Complainant's registered trademarks and providing links to the services and products offered by the Complainant to take advantage of Complainant's well known mark to achieve a wrongful competitive advantage and commercial gain.
(c) Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant.
(d) These links therefore divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business. The Panel should find that this effort to divert consumers and disrupt Complainant’s business is evidence of bad faith registration and use under Policy ¶ 4(b) (iii).
(e) Respondent's use of apparently falsified and/or incomplete WHOIS contact information demonstrates a desire to avoid being held accountable, which serves as further evidence of bad faith intent.
B. Respondent.
Respondent failed to submit a Response in this proceeding
1. Alaska Air Group, Inc. and its subsidiary, Alaska Airlines is an airline based in the Seattle suburb of SeaTac, Washington, United States.
2. Complainant owns the ALASKA AIRLINES trademark registered with the United States Patent and Trademark Office (”USPTO “) for air transportation services (U.S Reg. 1,561,416) (“the ALASKA AIRLINES mark”) on October 17, 1989.
3. Respondent registered the <alskaair.com> on August 22, 2000 and the
<akaskaair.com> domain name on November 26, 2005. The domain names are used to redirect internet users to a website featuring generic links to third party websites, some of which directly compete with Complainant’s business.
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 a trademark or service mark on which it can rely. Complainant has adduced evidence to the effect that it has a registered trademark for ALASKA AIRLINES with USPTO, being Trademark Reg. No. 1,561,416 registered with USPTO”) on October 17, 1989 (“ the ALASKA AIRLINES mark”). The Panel accepts that evidence. Based upon the evidence of the registrations provided, the Panel finds that Complainant has established its rights in the ALASKA AIRLINES 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 second question that arises is whether the disputed domain names are identical or confusingly similar to the ALASKA AIRLINES mark. First, the Panel notes that the disputed domain names include the generic top-level domain (“gTLD”) “.com”, but it is now well established that the top level domain cannot negate a finding of confusion similarity that otherwise exists, as it does in the present case. Moreover the <akaskaair.com> and <alskaair.com> domain names consist of the ALASKA AIRLINES mark in its entirety, with only minor spelling changes, changing the first “l” to a “k” and adding an “a” to the first domain name and in the case of the second domain name, omitting the second “a” and adding an “a” by way of variations to the trademark and clearly referring to the trademark and to the Complainant and its airline. These alterations are typosquatting and do not negate the confusing similarity with the trademark that is clearly present. The internet user would simply assume that the domain names had been misspelt. Accordingly, the Panel finds that each of the domain names is confusingly similar to the ALASKA AIRLINES mark. 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 names 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 ALASKA AIRLINES trademark and to use it in its domain names, making only minor spelling alterations to them, in each case giving the false impression by the construction of the domain names that they are official domain names of Complainant and that they will lead to official websites of Complainant’s airline business; that cannot give rise to a right or legitimate interest in the domain names; See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting" is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”);
(b) Respondent has then used the domain names to redirect
Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant's business;
(c) Respondent has engaged in these activities without the consent or approval
of Complainant;
(d) Complainant submits that Respondent is not using the domain names to provide a bona fide offering of goods or services as allowed under Policy ¶4(c)(i), nor a legitimate noncommercial or fair use as allowed under Policy ¶4(c)(iii); Complainant argues and the Panel accepts that the domain names have been used to promote goods and services in competition with those of Complainant. As the Panel agrees with Complainant’s submissions regarding the use of the domain names, it finds that such use of the domain names is not a Policy ¶ 4(c) (i) bona fide offering of goods and services, nor is it a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. That is so because it cannot give rise to a right or any legitimacy to pretend that a domain name is an official domain name of a trademark owner when it is not. See e.g., Fred W. Gretsch Enterprises, Ltd v. NOLDC, Inc., FA0906001270597 (Nat. Arb. Forum Aug. 5, 2009) (finding that when a respondent used the domain name <gretschdrum.com> to link to products that competed with those of the Complainant, "[t]he competitive nature of Respondent's use of [the domain name] renders this use neither bona fide offering of goods or services under Policy 4(c)(i) nor a legitimate noncommercial or fair use of the [domain name] under Policy4(c)(iii)")). See also Meadowbrook, LLC d/b/a The Land of Nod v. Venkateshawara Distrib. Private Ltd, FA1112001419361 (Nat. Arb. Forum Jan. 24, 2012) (finding that using a domain name to display hyperlinks to the complainant's competitors and unrelated business is not a bona fide offering of goods or services or a legitimate noncommercial or fair use);
(e) There is no evidence on the basis of which it can be said that Respondent has a right or legitimate interest in the domain names on any other ground.
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 names were registered in bad faith and have 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 names were registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent’s typosquatting is in itself evidence that Respondent has acted in bad faith. The Panel agrees and finds that such conduct shows Respondent’s Policy ¶ 4(a)(iii) bad faith use. See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Secondly, Complainant submits that Respondent's bad faith is further shown by the Respondent using the disputed domain names’ website in connection with generating revenue as a "click through" website by using the Complainant's registered trademark and providing links to the services and products offered by the Complainant to take advantage of Complainant's well known mark to achieve a wrongful competitive advantage and commercial gain. The Panel agrees with this submission and so finds. See the decision cited by Complainant, AIDA Cruises German Branch of Societa di CrociereMercurioS.r.l., v. Caribbean Online International Ltd. / BelgiumDomains ,WIPO Case D2008-1470.
Thirdly, Complainant submits that Respondent’s advertised pay-per-click links displayed on the resolving website promote products that compete with Complainant. The Panel has examined the evidence of screenshots adduced to establish this point and agrees with Complainant, as the website carries advertisements for Alaska Airlines, and Alaska Airline Jobs (which lead to a variety of enterprises) and also Singapore Airlines, among other results. The Panel finds that Complainant’s submission is correct and so finds. Fred W: Gretsch Enterprises; Ltd v. NOLDC, Inc., FA0906001270597 (Nat. Arb. Forum Aug. 5, 2009) (respondent acted in bad faith by using Complainant's mark to divert confused customers to websites selling competitors' products).
Fourthly, the facts as established by Complainant bring the case squarely within the express provisions of the Policy on bad faith and in particular Policy ¶ 4(b)(iii), prescribing that a respondent engages in bad faith by registering "the domain name primarily for the purpose of disrupting the business of a competitor") and Policy ¶ 4(b)(iv), prescribing that a respondent engages in bad faith when "by using the domain name, [it has] intentionally attempted to attract, for commercial gain, Internet users to [its] web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of [its] web site or location or of a product or service on [its] web site or location"). See: Meadowbrook, LLC d/b/a The Land of Nod v. Venkateshawara Distributor Private Ltd., FA1112001419361 (Nat. Arb. Forum Jan. 24, 2012) (finding that setting up a "click-through" website for which respondent likely receives revenue for each misdirected Internet user is evidence of bad faith); and La-Z-Boy Chair Company v. CSRUS Enterprises, FA1103001377835 (Nat. Arb. Forum Apr. 21, 2011) (respondent's use of a domain name "to earn click-through fees by attracting Internet users to [a] pay-per-click directory website" demonstrated bad faith registration).
Fifthly, the Panel agrees with the submission of Complainant that
Respondent's use of apparently falsified and/or incomplete WHOIS contact information demonstrates a desire to avoid being held accountable, which serves as further evidence of bad faith intent. See Time Warner Inc. v. AOLMEMBERS.COM et al., NAF Claim No. FA0701000881337 ("fictitious or false WHOIS information about both the registrant's name and physical address... raises the presumption of bad faith registration and use").
Sixthly, 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 names using the ALASKA AIRLINES mark and in view of the conduct that Respondent engaged in when using them, Respondent registered and used the disputed domain names 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 <akaskaair.com> and <alskaair.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
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