Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Kwan Lee
Claim Number: FA1408001574906
Complainant is Alaska Air Group, Inc. and its subsidiary, Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Kwan Lee (“Respondent”), Japan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alaskaarlines.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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 13, 2014; the National Arbitration Forum received payment on August 13, 2014.
On August 17, 2014, FABULOUS.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <alaskaarlines.com> domain name is registered with FABULOUS.COM PTY LTD. and that Respondent is the current registrant of the name. 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 August 26, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 15, 2014 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@alaskaarlines.com. Also on August 26, 2014, 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 September 22, 2014, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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
1. Respondent’s <alaskaarlines.com> domain name is confusingly similar to Complainant’s ALASKA AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <alaskaarlines.com> domain name.
3. Respondent registered and uses the <alaskaarlines.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
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.”).
Complainant uses the ALASKA AIRLINES mark in connection with its airline business, and owns the mark through its trademark registrations with the USPTO (e.g., Reg. No. 1,561,416, registered Oct. 17, 1989). The Panel finds that Complainant’s USPTO registrations satisfy the requirements of Policy ¶ 4(a)(i). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (“Complainant has established rights in the AIM mark through its use and federal trademark registrations for purposes of Policy ¶ 4(a)(i).”).
Respondent’s <alaskaarlines.com> domain name incorporates Complainant’s ALASKA AIRLINES mark and simply removes the spacing and the letter “i” from the mark, and adds the generic top-level domain (“gTLD”) “.com.” Previous panels have generally found that a domain name differing from a mark by a single letter does not escape confusing similarity, and that the affixation of gTLD and the omission of a space between words are irrelevant to the Policy ¶ 4(a)(i) analysis. See Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Nat. Arb. Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”); see also Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”). Accordingly, the Panel finds that Respondent’s <alaskaarlines.com> domain name is confusingly similar to Complainant’s ALASKA AIRLINES mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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.”).
Complainant alleges that Respondent is not commonly known by the <alaskaarlines.com> domain name. The WHOIS information identifies “Kwan Lee” as the registrant of the disputed domain name. Given the lack of evidence to infer otherwise, the Panel finds that Respondent is not commonly known by the <alaskaarlines.com> domain name pursuant to Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Complainant also argues that Respondent has not provided any bona fide offering of goods or services, or made a legitimate noncommercial or fair use of the disputed domain name. Complainant urges that the disputed domain name redirects confused Internet users to Complainant’s own website causing a likelihood of confusion to the users. Previous panels have found that such use of the disputed domain name does not provide a bona fide offering of goods or services, or make a legitimate noncommercial or fair use of the disputed domain name. See Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Nat. Arb. Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”). The Panel agrees that Respondent has not made a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), and holds no rights or legitimate interests in the disputed domain name.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent was part of an affiliate program with Complainant and, as part of that program, Respondent agreed it would not register domain names using Complainant’s mark. In so arguing, Complainant cites Cricket Communications, Inc. v. Oliver, FA 954005 (Nat. Arb. Forum May 29, 2007), where the panel found bad faith registration and use where the respondent registered domain names containing the complainant’s mark after enrolling in the complainant’s affiliate program. The Panel similarly finds that Respondent has acted in bad faith pursuant to Policy ¶ 4(a)(iii).
Respondent’s <alaskaarlines.com> domain name constitutes typosquatting. Panels have consistently held that typosquatting is meant to take advantage of typographical errors, and is thus motivated by bad faith. 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)). The Panel finds that Respondent’s typosquatting is evidence of bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant argues that Respondent had actual notice of Complainant’s rights in the ALASKA AIRLINES mark, because it was a part of Complainant’s affiliate program. The Panel agrees and finds that this constitutes further evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
The Panel finds that Complainant has satisfied 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 <alaskaarlines.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 25, 2014
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