Eastern Air Lines Group, Inc. v. Online Admin / DotBadger Domains
Claim Number: FA1411001591893
Complainant is Eastern Air Lines Group, Inc. (“Complainant”), represented by Jenna F. Karadbil, New York, USA. Respondent is Online Admin / DotBadger Domains (“Respondent”), Czech Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <easternairlines.com>, registered with NameScout Corp.
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 November 24, 2014; the National Arbitration Forum received payment on November 24, 2014.
On December 3, 2014, NameScout Corp. confirmed by e-mail to the National Arbitration Forum that the <easternairlines.com> domain name is registered with NameScout Corp. and that Respondent is the current registrant of the name. NameScout Corp. has verified that Respondent is bound by the NameScout 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 December 8, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 29, 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@easternairlines.com. Also on December 8, 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 January 6, 2015, 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 <easternairlines.com> domain name is identical to Complainant’s EASTERN AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <easternairlines.com> domain name.
3. Respondent registered and uses the <easternairlines.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant holds a registration for the EASTERN AIR LINES mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No., 1,285,593, registered July 10, 1984).
Respondent registered the <easternairlines.com> domain name on January 16, 2008, and uses it to host websites that promote various airline-related advertisements, and also to offer the domain name for sale.
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 Panel finds that Complainant’s USPTO registration of the EASTERN AIRLINES mark illustrates its Policy ¶ 4(a)(i) rights in the mark. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Complainant claims that the <easternairlines.com> domain name is essentially identical to the EASTERN AIR LINES trademark. The Panel agrees that removing the spacing and adding the gTLD “.com” does not distinguish the disputed domain name from Complainant’s mark. See HomeVestors of Am., Inc. v. Sean Terry, FA 1523266 (Nat. Arb. Forum Nov. 11, 2013) (“[T]he Panel notes that panels have previously held that a domain name’s elimination of spaces found in the complainant’s mark and addition of a gTLD such as “.com” do not sufficiently differentiate the domain name from the complainant’s mark for the purposes of a confusing similarity analysis under Policy ¶ 4(a)(i).”).
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 claims that Respondent does business as “DotBadger Domains” and is not otherwise known by the <easternairlines.com> domain name. The Panel finds that, as Respondent holds no license to use Complainant’s EASTERN ARILINES mark, there is no evidence to suggest Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See LawyerLocate.ca Inc v. J Kirby Inwood / CanLaw, FA 1496334 (Nat. Arb. Forum June 20, 2013) (“Respondent’s name is J Kirby Inwood and his organization’s name is CanLaw. There is no evidence Respondent is known by the Domain Names nor by the names Lawyerlocate or Lawyerlocate.ca.”).
Complainant also argues that Respondent uses the <easternairlines.com> domain name to host websites that promote various airline-related advertisements, which is not a bona fide offering of goods or services. In Summit Group, LLC v. LSO, Ltd., FA 758981 (Nat. Arb. Forum Sept. 14, 2006), the panel held that use of a domain name for the purpose of hyperlink advertising is not suggestive of any bona fide offering of goods or services. Thus, the Panel finds that Respondent has not made a Policy ¶ 4(c)(i) bona fide offering, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Complainant claims that in November 2014 Respondent placed the <easternairlines.com> domain name up for public sale, a further indication that Respondent has not made a Policy ¶ 4(c)(i) bona fide offering, or Policy ¶ 4(c)(iii) legitimate noncommercial or fair use, of this domain name. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent’s pattern of bad faith is demonstrated by a previous case Helena Christensen v. DotBadger Domains, D2013–1706 (WIPO Nov. 26, 2013), where Respondent was held to have registered the disputed domain name in bad faith. The Panel agrees and finds bad faith under Policy ¶ 4(b)(ii). See Bullock v. Network Operations Ctr., FA 1269834 (Nat. Arb. Forum Aug. 10, 2009) (“Complainant contends that Respondent has a longstanding history of cybersquatting . . . . The Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(ii).”).
Complainant claims that the presence of competing hyperlinks at <easternairlines.com>, and the diversion of Internet users to competing websites, demonstrates Respondent’s aim to disrupt Complainant’s business. In Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008), the panel held competing links alone to be enough to infer bad faith through a Policy ¶ 4(b)(iii) disruption. Thus, the Panel finds that the links to other airlines constitutes evidence of Policy ¶ 4(b)(iii) bad faith.
Respondent is seeking to capitalize on the likelihood of Internet user confusion as to the association of the EASTERN AIR LINES mark with the <easternairlines.com> domain name. The Panel therefore finds Policy ¶ 4(b)(iv) bad faith. 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.’”).
The Panel also finds that Respondent’s offer to sell the disputed domain name supports a finding of bad faith under Policy ¶ 4(b)(i). See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (finding that when the domain name itself notes that it is “available for lease or sale,” evidence that the domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(i) can be inferred from the fact that “the sole value of the [<wwwdinersclub.com] domain name is dictated by its relation to the complainant’s registered DINERS CLUB mark”).
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 <easternairlines.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 8, 2015
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