NetJets Inc. v. Fundacion Private Whois / Domain Administrator
Claim Number: FA1206001448880
Complainant is NetJets Inc. (“Complainant”), represented by Beverly A. Marsh of Standley Law Group LLP, Ohio, USA. Respondent is Fundacion Private Whois / Domain Administrator (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <netjet.com>, registered with Internet.bs Corp.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electron-ically on June 15, 2012; the National Arbitration Forum received payment on June 15, 2012.
On June 20, 2012, Internet.bs Corp. confirmed by e-mail to the National Arbi-tration Forum that the <netjet.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 June 22, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 12, 2012 by which Re-spondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and bil-ling contacts, and to postmaster@netjet.com. Also on June 22, 2012, 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 July 20, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 Not-ices, 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 employs the NETJETS service mark in connection with the mar-keting of aircraft fractional ownership programs and related financing services, as well as fueling services for aircraft, leasing of aircraft, aircraft crew scheduling and flight planning, and aircraft chartering services.
Complainant owns registrations, on file with the United States Patent and Trade-mark Office (“USPTO”) for the NETJETS service mark (including Registry No. 2,671,376, registered Jan. 7, 2003), and for the NET JETS service mark (includ-ing Reg. No. 1,545,644, registered June 27, 1989).
Respondent registered the <netjet.com> domain name on August 18, 2002.
Respondent’s domain name is confusingly similar to Complainant’s NET JETS service mark.
Respondent is not making a bona fide offering of goods or services or a legit-imate noncommercial or fair use of the domain name.
Respondent’s resolving website is a “parked website,” from which Respondent presumably receives revenue tracing to visits by Internet users to websites re-solving from pay-per-click links featured there.
Respondent’s resolving website also features links to the websites of Complain-ant’s commercial competitors offering aircraft charter services.
Respondent has not been commonly known by the <netjet.com> domain name.
Complainant has not given Respondent permission to use the NET JETS mark in any way.
Respondent has neither rights to nor any legitimate interests in the <netjet.com> domain name.
Respondent employment of the contested domain name is in bad faith and dis-rupts Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Re-spondent in bad faith.
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 can-celled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 representa-tions 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, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP 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.”
Complainant has rights in its NET JETS service mark under Pol-icy ¶ 4(a)(i) by reason of its registration of that mark with a national trade-mark authority, the USPTO. See, for example, Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006):
Complainant has established rights in the … mark through registration of the mark with the USPTO.
See also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that a complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Turning then to the central question under this head of the Policy, we find that the <netjet.com> domain name is confusingly similar to Complainant’s NET JETS service mark. The domain name contains Complainant’s entire NET JETS mark, with the mere omission of the space between the elements of the mark and of the letter “s,” plus the addition of the (“gTLD”) “.com.” These alterations of the mark made in forming the domain name are insufficient to differentiate one from the other under the standards of Policy ¶ 4(a)(i). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from the mark of another from which it was derived); see also Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from a complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made a disputed domain name confusingly similar to it).
Finally, that the disputed domain name removes the space from between the terms of Complainant’s mark is inconsequential to an analysis under Policy ¶ 4(a)(i) because spaces are not allowed in domain names.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Re-spondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must first make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent 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 has made a sufficient prima facie showing under this head of the Policy. Therefore, and because Respondent has failed to respond to the alle-gations of the Complaint filed in this proceeding, we are free to conclude that Respondent has no rights to or legitimate interests in the contested domain name. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000), and Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000), both holding that, where a respondent fails to respond to a UDRP Com-plaint, a panel may draw the inference that that respondent does not have rights to or legitimate interests in a disputed domain name. Nonetheless, we will ex-amine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respond-ent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant alleges, and Respondent does not deny,
that Respondent has not been commonly known by the <netjet.com> disputed domain name, and that Complainant has not authorized Respondent to use the NET JETS mark in any way. Moreover, the WHOIS information for the domain name identifies the registrant only as “Fundacion Private WHOIS/ Domain Ad-ministrator,” which does not resemble the contested domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have demonstrated that it has rights to or legitimate interests in that domain within the contemplation of Policy ¶ 4(c)(ii). See, for example, Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corp-orate Services11, is not commonly known by the name ‘welsfargo’ in any deriv-ation.”); see also Foot Locker Retail, Inc. v. Gibson, FA 139693 (Nat. Arb. Forum Feb. 4, 2003):
Due to the fame of Complainant’s … marks . . . and the fact that Respondent’s WHOIS information reveals its name to be ‘Bruce Gibson,’ the Panel infers that Respondent was not ‘com-monly known by’ any of the disputed domain names prior to their regis-tration, and concludes that Policy ¶ 4(c)(ii) does not apply to Respondent.
We next observe that Complainant contends, without objection from Respondent, that Respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name, in that the <netjet.com> domain name redirects Internet users to a site featuring links to websites competing with Complainant in the marketing of aircraft chartering and related services, and from which Respondent presumably receives pay-per click commissions. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name. See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respond-ent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that a respondent’s diversionary use of a complainant’s marks in a domain name in order to send Internet users to a website which displayed a series of links, some of which linked to websites of that complainant’s competitors, was not a bona fide offering of goods or services).
The Panel therefore finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s use of the <netjet.com> disputed domain name in in the manner alleged in the Complaint disrupts Complainant’s business, and therefore evi-dences bad faith registration and use of the domain under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a domain name confusingly similar to the mark of another to attract Internet users to a website containing links to the websites of a complainant’s commercial competitors represents bad faith regis-tration and use of the domain under Policy ¶ 4(b)(iii)); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that a respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using disputed domain names to operate a search engine with links to the websites of a complainant’s commercial competitors).
In addition, the record shows that Respondent’s employment of the <netjet.com> domain name evidences bad faith registration and use of the domain under Policy ¶ 4(b)(iv), in that Respondent plainly attempts to attract Internet users to its website, for its commercial gain, by creating a likelihood of confusion with Complainant’s NET JETS service mark. See, for example, Associated News-papers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003):
Respondent's … use of the … 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.’
See also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that a respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to a complainant’s mark to offer links to third-party websites that featured services similar to those offered by a complainant).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <netjet.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 3, 2012
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