Alaska Air Group, Inc., and its subsidiary, Alaska Airlines v. Amador Holdings Corp / Alex Arrocha
Claim Number: FA1304001494297
Complainant is Alaska Air Group, Inc., and its subsidiary, Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Amador Holdings Corp / Alex Arrocha (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <aalaskaair.com>, <alaskaaiir.com>, <alaskaairr.com>, <alaskaait.com>, <alaskaaor.com>, <alaskaar.com>, <alaskkaair.com>, <alskaairlines.com>, <horizenair.com>, and <horizionair.com>, registered with Pananames.
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 April 11, 2013; the National Arbitration Forum received payment on April 11, 2013.
On April 22, 2013, Pananames confirmed by e-mail to the National Arbitration Forum that the <aalaskaair.com>, <alaskaaiir.com>, <alaskaairr.com>, <alaskaait.com>, <alaskaaor.com>, <alaskaar.com>, <alaskkaair.com>, <alskaairlines.com>, <horizenair.com>, and <horizionair.com> domain names are registered with Pananames and that Respondent is the current registrant of the names. Pananames has verified that Respondent is bound by the Pananames 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 22, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 13, 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@aalaskaair.com, postmaster@alaskaaiir.com, postmaster@alaskaairr.com, postmaster@alaskaait.com, postmaster@alaskaaor.com, postmaster@alaskaar.com, postmaster@alaskkaair.com, postmaster@alskaairlines.com, postmaster@horizenair.com, and postmaster@horizionair.com. Also on April 22, 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 23, 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. Policy ¶ 4(a)(i).
a. Complainant, Alaska Air Group, Inc., and its subsidiary, Alaska Airlines, is an airline based in the Seattle suburb of SeaTac, Washington, United States.
b. Complainant owns rights in the ALASKA AIRLINES mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,561,416, registered October 17, 1989).
c. Complainant owns rights in the HORIZON AIR mark through its registration with the USPTO (e.g., Reg. No. 1,754,242 registered February 23, 1993).
d. Respondent’s <aalaskaair.com>, <alaskaaiir.com>, <alaskaairr.com>, <alaskaait.com>, <alaskaaor.com>, <alaskaar.com>, <alaskkaair.com>,and <alskaairlines.com> domain names are confusingly similar to Complainant’s ALASKA AIRLINES mark.
e. Respondent’s <horizenair.com> and <horizionair.com>domain names are confusingly similar to Complainant’s HORIZON AIR mark.
2. Policy ¶ 4(a)(ii)
a. Respondent is not commonly known by the disputed domain names.
b. Respondent is not affiliated with Complainant in any way.
c. Complainant has not given Respondent permission to use Complainant’s marks
d. Respondent has ignored complainant’s attempts to resolve this dispute.
e. Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain names. Respondent is a member of Complainant’s affiliate program.
f. Respondent is receiving pay-per-click fees from its resolving websites.
g. The earliest date on which Respondent registered the disputed domain names was June 15, 2000, which is after Complainant’s first use in commerce, June 30, 1942.
3. Policy ¶ 4(a)(iii)
a. Respondent’s typosquatting is evidence of bad faith use and registration.
b. Respondent is generating revenue from pay-per-click links featured on its resolving websites.
c. Respondent is using the disputed domain names to attract and mislead consumers for its own profit.
d. Respondent’s use of the disputed domain names promotes products that compete with Complainant.
e. Respondent is diverting potential customers away from Complainant to third party websites, thereby disrupting Complainant’s business.
f. Respondent is a member of Complainant’s affiliate program, and was therefore aware of Complainant’s rights in its marks.
B. Respondent
Respondent failed to submit a Response to this case.
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 Alaska Airlines. Complainants contend that 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 Panel accepts that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants, and accordingly it will treat them all as a single entity in this proceeding. Throughout the decision, the Complainants will be collectively referred to as “Complainant.”
FINDINGS
1. Complainant, 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 rights in the ALASKA AIRLINES mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,561,416, registered October 17, 1989) and in the HORIZON AIR mark through its registration with the USPTO (e.g., Reg. No. 1,754,242 registered February 23, 1993).
3. Respondent registered the <aalaskaair.com> domain name on May 25, 2004 , the <alaskaaiir.com> domain name on May 25,2004, the <alaskaairr.com> domain name on May 25, 2004, the <alaskaait.com> domain name on May 25, 2004, the <alaskaaor.com> domain name on May 25,2004, the <alaskaar.com> domain name on May 25,2004, the <alaskkaair.com> domain name on May 25, 2004, the <alskaairlines.com> domain name on June 16,2000, the <horizenair.com> domain name on May 19, 2004 and the <horizionair.com> domain name on May 18, 2004.
4. Respondent is using the disputed domain names to attract and mislead consumers for its own profit by promoting products that compete 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.”).
The first question that arises is whether Complainant has rights in a trademark or service mark. Complainant, Alaska Air Group, Inc., and its subsidiary, Alaska Airlines, argues that it is an airline based in the Seattle suburb of SeaTac, Washington, United States. Complainant asserts that it owns rights in the ALASKA AIRLINES mark through its registration with the USPTO (Reg. No. 1,561,416, registered October 17, 1989). Complainant argues that it owns rights in the HORIZON AIR mark through its registration with the USPTO (e.g., Reg. No. 1,754,242 registered February 23, 1993). See Complainant’s Exhibit E. The Panel notes that although Respondent appears to reside in Chile, the Panel finds that Complainant does not need to register its mark in the country that Respondent operates in. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence). Accordingly, the Panel determines that Complainant’s registration of the ALASKA AIRLINES and HORIZON AIR marks sufficiently demonstrates its rights in the marks under Policy ¶ 4(a)(i). 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).”).
The second question that arises is whether the disputed domain names are identical or confusingly similar to any of Complainant’s ALASKA AIRLINES or HORIZON AIR trademarks .Complainant claims that Respondent’s <aalaskaair.com>, <alaskaaiir.com>, <alaskaairr.com>, <alaskaait.com>, <alaskaaor.com>, <alaskaar.com>, <alaskkaair.com> and <alskaairlines.com> disputed domain names are confusingly similar to Complainant’s ALASKA AIRLINES mark. Complainant contends that the disputed domain names are confusingly similar to Complainant’s mark because they differ by only a single character from Complainant’s marks. The Panel notes that Respondent adds, substitutes, and/or removes letters from Complainant’s ALASKA AIRLINES mark and removes the term “line” from Complainant’s mark in the <aalaskaair.com>, <alaskaaiir.com>, <alaskaairr.com>, <alaskaait.com>, <alaskaaor.com>, <alaskaar.com>, and <alaskkaair.com> domain names. The Panel finds that the addition of letters, removal of letters, substitution of letters, and removal of terms in a domain name does not distinguish Respondent’s domain names from Complainant’s mark under Policy ¶ 4(a)(i). See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)); see also Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”); see also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Am. Eagle Outfitters, Inc. v. Admin, FA 473826 (Nat. Arb. Forum June 22, 2005) (finding the <americaneaglestores.com> domain name to be confusingly similar to the complainant’s AMERICAN EAGLE OUTFITTERS mark). The Panel notes that Respondent also removes the spaces and adds the generic top-level domain (“gTLD”) “.com” to the disputed domain names. The Panel determine that the removal of spaces and addition of gTLDs is irrelevant to a Policy ¶ 4(a)(i) analysis. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Thus, the Panel concludes that Respondent’s <aalaskaair.com>, <alaskaaiir.com>, <alaskaairr.com>, <alaskaait.com>, <alaskaaor.com>, <alaskaar.com>, <alaskkaair.com>, and <alskaairlines.com> domain names are confusingly similar to Complainant’s ALASKA AIRLINES mark pursuant to Policy ¶ 4(a)(i).
Complainant asserts that Respondent’s <horizenair.com> and <horizionair.com> domain names are confusingly similar to Complainant’s HORIZON AIR mark. The Panel notes that Respondent substitutes the letter “o” for the letter “e” in Complainant’s HORIZON AIR mark in the <horizenair.com> domain name. The Panel holds that the substitution of letters in a domain name does not differentiate Respondent’s domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). The Panel notes that Respondent adds the letter “i” to Complainant’s HORIZON AIR mark in the <horizionair.com> domain name. The Panel holds that the addition of a letter to a mark in a disputed domain name negates confusing similarity pursuant to Policy ¶ 4(a)(i). See Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006) (finding the <vallpak.com> domain name to be confusingly similar to the VALPAK mark under Policy ¶ 4(a)(i)). Finally, the Panel notes that Respondent removes the spaces in Complainant’s mark and adds the gTLD “.com” to its <horizenair.com> and <horizionair.com> disputed domain names. The Panel determines that Respondent’s removal of spaces and addition of a gTLD is irrelevant to a Policy ¶ 4(a)(i) confusingly similar analysis. 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 determines that Respondent’s <horizenair.com> and <horizionair.com> disputed domain names are confusingly similar to Complainant’s HORIZON AIR mark pursuant to Policy ¶ 4(a)(i).
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. 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.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen in the case of each of the disputed domain names to take one of Complainant’s trademarks referred to above and to use it in its domain names, making only minor spelling alterations, thus implying that the domain name in each case is an official domain name of Complainant and that it will lead to an official website of Complainant dealing with Complainant’s services, neither of which is true;
(b) Respondent has then used the disputed domain names to attract and mislead consumers for its own profit by promoting products that compete with Complainant;
(c) Respondent has engaged in these activities without the consent or approval of Complainant;
(d) Complainant argues that Respondent is not commonly known by the disputed domain names. Complainant asserts that Respondent is not affiliated with Complainant in any way and that it has not given Respondent permission to use Complainant’s marks. Complainant argues that Respondent failed to respond to Complainant’s “Cease and Desist” letter and that Respondent has ignored complainant’s attempts to resolve this dispute. The Panel notes that the WHOIS information lists “Amador Holdings Corp / Alex Arrocha” as the registrant of the disputed domain names. See Complainant’s Exhibit I. Therefore, the Panel determines that Respondent is not commonly known by the disputed domain name pursuant to 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);
(e) Complainant argues that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain names.Complainant contends that Respondent is receiving pay-per-click fees from its resolving websites. Complainant asserts that Respondent is using the <alaskaaiir.com>, <alaskaairr.com>, <alaskaait.com>, <alaskaaor.com>, <alaskaar.com>, <alaskkaair.com>, <horizenair.com>, and <horizionair.com> domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. The Panel notes that Respondent’s disputed domain names link to competing hyperlink directories featuring links such as “Alaska Cruise,” “Alaska Air,” “Airline Tickets,” and others. See Complainant’s Exhibit H. Thus, the Panel holds that Respondent’s use of the disputed domain names to feature competing hyperlinks is not a Policy ¶ 4(c)(i) bona fide offering of goods and services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”);
(f) Complainant argues that Respondent is a member of Complainant’s affiliate program, and was therefore aware of Complainant’s rights in its marks. The Panel notes that Respondent’s <aalaskaair.com> and <alskaairlines.com> domain names resolve to Complainant’s ALASKA AIRLINES website. See Complainant’s Exhibit H. The Panel holds that Respondent’s use of the disputed domain names to resolve to Complainant’s website is not a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(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)).
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 contends that Respondent’s use of the disputed domain names promotes products that compete with Complainant. The Panel notes that Respondent’s <alaskaaiir.com>, <alaskaairr.com>, <alaskaait.com>, <alaskaaor.com>, <alaskaar.com>, <alaskkaair.com>, <horizenair.com>, and <horizionair.com> disputed domain names link to competing hyperlink directories featuring links such as “Alaska Cruise,” “Alaska Air,” “Airline Tickets,” and others. See Complainant’s Exhibit H. Complainant claims that Respondent is diverting potential customers away from Complainant to third party websites, thereby disrupting Complainant’s business. Thus, the Pane determines that Respondent’s disputed domain names disrupt Complainant’s business under Policy ¶ 4(a)(i). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Secondly, Complainant asserts that Respondent is generating revenue from pay-per-click links featured on its resolving websites. Complainant claims that Respondent is using the <alaskaaiir.com>, <alaskaairr.com>, <alaskaait.com>, <alaskaaor.com>, <alaskaar.com>, <alaskkaair.com>, <horizenair.com>, and <horizionair.com> disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. See Complainant’s Exhibit H. Complainant argues that Respondent is using the disputed domain names to attract and mislead consumers for its own profit. Therefore, the Panel finds that Respondent’s use of the disputed domain names to attract Internet users from Complainant’s website to its own websites constitutes bad faith use and registration pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Thirdly, Complainant argues that Respondent is a member of Complainant’s affiliate program. The Panel notes that Respondent’s <aalaskaair.com> and <alskaairlines.com> domain names resolve to Complainant’s ALASKA AIRLINES website. See Complainant’s Exhibit H. Complainant contends that through its membership in Complainant’s affiliate program, Respondent was therefore aware of Complainant’s rights in its marks. While panels have concluded that constructive notice is not sufficient to support a bad faith finding, the Panel finds that, due to Respondent’s membership in Complainant’s affiliate program, Respondent had actual knowledge of the mark and Complainant's rights. Thus, the Panel holds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
Fourthly, Complainant contends that Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. The Panel finds that Respondent’s intentional misspelling of the words with the intent to intercept traffic from Complainant shows bad faith use and registration under Policy ¶ 4(a)(iii). 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’”).
Fifthly, 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 Complainant’s trademarks in the manner described above and its subsequent use of the disputed domain names, Respondent registered and used them 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 <aalaskaair.com>, <alaskaaiir.com>, <alaskaairr.com>, <alaskaait.com>, <alaskaaor.com>, <alaskaar.com>, <alaskkaair.com>, <alskaairlines.com>, <horizenair.com>, and <horizionair.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: June 5, 2013
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