Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Fundacion Private Whois / Domain Administrator
Claim Number: FA1304001493067
Complainant is Alaska Air Group, Inc. and its subsidiary, Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Fundacion Private Whois / Domain Administrator (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alaskaairlines.co>, registered with CCI REG S.A.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 4, 2013; the National Arbitration Forum received payment on April 4, 2013.
On April 4, 2013, CCI REG S.A. confirmed by e-mail to the National Arbitration Forum that the <alaskaairlines.co> domain name is registered with CCI REG S.A. and that Respondent is the current registrant of the name. CCI REG S.A. has verified that Respondent is bound by the CCI REG S.A. 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 April 5, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 25, 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@alaskaairlines.co. Also on April 5, 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 May 2, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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 contends as follows:
The domain name is identical to a mark in which Complainant has rights. Complainant owns a federal trademark registration with the United States Patent and Trademark Office (“USPTO”) for the ALASKA AIRLINES mark (Reg. No. 1,561,416 registered Oct. 17, 1989).
Respondent registered the <alaskaairlines.co> domain name on July 20, 2010.
The at-issue domain name contains Complainant’s mark in its entirety, with only the addition of the country-code top-level domain (“ccTLD”) “.co.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the domain name, based on the WHOIS information and Complainant’s lack of authorization to use its mark.
The disputed domain name was registered and is being used in bad faith. Respondent is using the domain name to redirect Internet users to Complainant’s own website through Complainant’s affiliate program.
Respondent is typosquatting, which is evidence of bad faith.
Respondent has demonstrated a pattern of bad faith registration through prior adverse UDRP decisions.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns a USPTO registered trademark for ALASKA AIRLINES.
Respondent is not affiliated with Complainant and had not been authorized to use the ALASKA AIRLINES mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in ALASKA AIRLINES.
The <alaskaairlines.co> domain name addresses a website used to redirect Internet users to Complainant’s own website through Complainant’s affiliate program.
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
There are two Complainants in the instant dispute. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny 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.” The fact that Alaska Airlines is a subsidiary of Alaska Air Group is sufficient to allow the co-complainants to proceed together. Complainants will be referred to herein as Complainant.
The at-issue domain name is identical to a trademark in which Complainant has rights.
Complainant’s registration of the BULKREGISTER mark with the USPTO sufficiently demonstrates its rights in a mark under Policy ¶ 4(a)(i) and Complainant need not have register its mark Respondent’s country to demonstrate such rights. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i)”); 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 and it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
The domain name contains Complainant’s mark in its entirety, with only the deletion of a space and the addition of the top level domain name “.co.” The deletion of spaces and addition of a top level domain name is irrelevant to Policy ¶ 4(a)(i) analysis. Therefore the Panel finds that the <alaskaairlines.co> domain name is identical to Complainant’s ALASKA AIRLINES mark under Policy ¶ 4(a)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that eliminating the space between terms of a mark still rendered the <gwbakeries.mobi> domain name identical to the complainant’s GW BAKERIES mark); see also Audigier Brand Mgmt. Grp., LLC v. bai wentao, FA 1286108 (Nat. Arb. Forum Nov. 16, 2009) (holding that even after the “addition of a ccTLD the disputed domain name is still identical to Complainant’s mark.”).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and since as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information identifies “Fundacion Private Whois / Domain Administrator” as the at-issue domain name’s registrant. Moreover, the record before the Panel contains no evidence that suggests that Respondent is otherwise commonly known by the domain name. The Panel thus concludes that Respondent is not commonly known by the at-issue domain name for the purposes of 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); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent is using Complainant’s affiliate program to redirect users to Complainant’s own site contrary to any agreement between the parties. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(a)(i), nor a legitimate noncommercial or fair use under Policy ¶4(a)(iii). See Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Nat. Arb. Forum May 3, 2006) (finding that the respondent’s use of the disputed domain names to divert Internet users attempting to reach the complainant’s website and in breach of the complainant’s affiliate program is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
The at‑issue domain name was registered and is being used in bad faith. As discussed below, both Policy ¶4 (b) specific bad faith circumstances, as well as non-Policy ¶ 4(b) circumstance, are present and compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent’s conduct may be characterized as establishing a pattern of bad faith registrations given that multiple UDRP decisions are adverse to Respondent. See Enterprise Holdings, Inc. v. Fundacion Private Whois / Domain Administrator, FA 1444231 (Nat. Arb. Forum June 12, 2012); see also Oakley, Inc. v. Fundacion Private Whois / Domain Administrator, FA 1451054 (Nat. Arb. Forum Aug. 3, 2012); see also OneWest Bank, FSB v. Fundacion Private Whois / Domain Administrator, FA 1481684 (Nat. Arb. Forum Mar. 11, 2013). Such pattern suggests bad faith registration regarding the instant dispute pursuant to Policy ¶ 4(b)(ii). See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”).
Additionally, contrary to Complainant’s affiliate agreement Respondent is using the at-issue domain name to redirect Internet users to Complainant’s own website through Complainant’s affiliate program. In doing so Respondent is commercially benefiting from this misuse of Complainant’s mark at Complainant’s expense. These circumstances demonstrate bad faith under Policy ¶ 4(b)(iv). See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the respondent registered and used the <deluxeform.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to the complainant’s <deluxeforms.com> domain name, thus receiving a commission from the complainant through its affiliate program).
Finally, Respondent’s behavior may be characterized as typosquatting in that Respondent apparently designed the domain name to take advantages of Internet users who inadvertently mistype one of Complainant’s official Internet addresses, <alaskaairlines.com>, by omitting the “m” in “.com.” Respondent has caused the website addressed by the at-issue domain name to display Complainant's mark correctly spelled even though the domain name is a misspelled version of the same mark. The use of Complainant’s mark on Respondent’s referenced website further indicates that the domain name’s registration was calculated to improperly capitalize on Complainant's well-known trademark and Respondent’s typosquatting is, in itself, evidence of bad faith pursuant to Policy ¶ 4(a)(iii). 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)).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alaskaairlines.co> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 5, 2013
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