American Airlines Group Inc. f/k/a AMR Corporation v. Brian Hayes
Claim Number: FA1507001631549
Complainant is American Airlines Group Inc. f/k/a AMR Corporation (“Complainant”), represented by Andrew J. Avsec of Brinks Gilson & Lione, Illinois, USA. Respondent is Brian Hayes (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <amr-corporation.com>, registered with GoDaddy.com, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 31, 2015; the Forum received payment on July 31, 2015.
On August 3, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <amr-corporation.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 5, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 25, 2015 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@amr-corporation.com. Also on August 5, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On August 28, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 American Airlines Group Inc., frequently known as AMR Corporation, has registered the AMR trademark through the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,713,617, registered Nov. 24, 2009). Complainant has used and continues to use the AMR trademark in connection with its air travel and transportation business, and has done so for approximately 30 years. The <amr-corporation.com> domain name is confusingly similar to the AMR mark. The disputed domain name adds a hyphen, inserts the generic word “corporation,” and attaches the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has never been commonly known by or referred to as “AMR Corporation” or any variation thereof. In fact, Complainant is not affiliated with Respondent in any way, and Respondent is not authorized or licensed by Complainant to use its AMR mark. In addition, Respondent has never offered any bona fide goods or services, nor has Respondent demonstrated a noncommercial or fair use of the disputed domain name. Respondent uses the disputed domain name and its associated e-mail address to impersonate Complainant and to send unauthorized fraudulent solicitations to third-parties.
Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii). Respondent use the disputed domain name to disrupt Complainant’s business in violation of Policy ¶ 4(b)(iii). In addition, Respondent is attempting to generate commercial gain by passing itself off as Complainant or an employee of Complainant. Such actions sufficiently demonstrate bad faith registration pursuant to Policy ¶ 4(b)(iv). Further, due to Complainant’s valid USPTO registrations of the AMR mark, Respondent registered the domain name with full knowledge of Complainant’s rights in the AMR mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is American Airlines Group Inc., f/k/a AMR Corporation, of Fort Worth, TX, USA. Complainant is the owner of the domestic registration for the mark AMR, which it has used continuously since at least as early as 2009, in connection with its provision of services in the aviation and transportation industries.
Respondent is Brian Hayes, of Castle Pines, CO, USA. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes that the disputed domain name was registered on or about July 17, 2015.
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 American Airlines Group Inc., frequently known as AMR Corporation, asserts that it has registered the AMR trademark through the USPTO (Reg. No. 3,713,617, registered Nov. 24, 2009). Complainant contends that it has used and continues to use the AMR mark in connection with its air travel and transportation business, and has done so for approximately 30 years. Previous panels have found that registration of a mark through the USPTO is sufficient to demonstrate a complainant’s rights in a mark according to 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 Panel here finds that Complainant has established adequate rights in the AMR trademark through its valid USPTO registration.
Complainant argues that the <amr-corporation.com> domain name is confusingly similar to the AMR mark. The disputed domain name adds a hyphen, inserts the generic word “corporation,” and attaches the gTLD “.com.” Past panels have held that the mere addition of a hyphen is an insufficient modification to create distinctiveness in the disputed domain name. See Health Devices Corp. v. Aspen S T C, FA 158254 (Nat. Arb. Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”). Panelists have also found that the addition of a gTLD and a generic word, does little to differentiate the disputed domain name from the registered mark, particularly when the chosen term heightens consumer confusion. See Chanel, Inc. v. Cologne Zone, D2000-1809 (WIPO Feb. 22, 2001) (“CHANEL, the salient feature of the Domain Names, is identical to a mark in which Complainant has shown prior rights. The addition of the generic term, “perfumes” is not a distinguishing feature, and in this case seems to increase the likelihood of confusion because it is an apt term for Complainant’s business.”); see also Chevron Intellectual Property LLC v. Richard Bailey / Jacobs, FA 1588430 (Nat. Arb. Forum December 9, 2014) (holding “that the additions of a hyphen, gTLD, and generic business term ‘corporation,’ fail to distinguish the resulting domain name from the mark, and therefore finds the <chevron-corporation.com> domain name confusingly similar to the CHEVRON mark pursuant to Policy ¶ 4(a)(i).”). The Panel here finds that the <amr-corporation.com> domain name is confusingly similar to Complainant’s AMR mark pursuant to Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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). The Complainant has met this burden.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Further, Complainant contends that Respondent has never been commonly known by or referred to as “AMR Corporation” or any variation thereof. Complainant states it is not affiliated with Respondent in any way, and Respondent is not authorized or licensed by Complainant to use its AMR mark. The Panel notes that the WHOIS record for the disputed domain name supports Complainant’s argument, as it refers to “Brian Hayes” as the registrant of record. As Respondent has failed to provide a response or any evidence to the contrary, the Panel concludes that Complainant’s contentions support a finding that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
In addition, Complainant asserts that Respondent has never offered any bona fide goods or services, nor has Respondent demonstrated a noncommercial or fair use of the disputed domain name. According to Complainant, Respondent uses the disputed domain name and its associated e-mail address to impersonate Complainant and to send unauthorized fraudulent solicitations to third-parties. Complainant contends that Respondent poses under the fraudulent e-mail address <brian.hayes@amr-corporation.com> and uses the e-mail address in an attempt to gain goods of significant monetary value. Prior panels have found that similar fraudulent actions are not a bona fide offerings of goods or services or legitimate noncommercial or fair use. In Chevron Intellectual Property LLC v. Richard Bailey / Jacobs, FA 1588430 (Nat. Arb. Forum December 9, 2014), the panel found that the respondent’s use of the disputed domain name in furtherance of fraudulent activity under the misleading guise of the <chevron-corporation.com> domain name and associated e-mail address failed to amount to either a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) and (iii). The Panel here finds that Respondent’s use of the <amr-corporation.com> domain name is neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) and (iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As the Respondent has not provided a response to this action, the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant asserts that Respondent uses the disputed domain name to disrupt Complainant’s business in violation of Policy ¶ 4(b)(iii). Complainant contends that Respondent is attempting to impersonate Complainant and sends unauthorized fraudulent e-mails to Complainant’s suppliers under the <brian.hayes@amr-corporation.com> e-mail address, which is disruptive to Complainant’s business. Prior panels have found that use of an e-mail address, connected to a confusingly similar domain name for fraudulent purposes, is disruptive and demonstrates bad faith under Policy ¶ 4(b)(iii). See SHUAA Capital psc v. SHUAA CAPITAL, FA 1581256 (Nat. Arb. Forum Oct. 29, 2014) (“Respondent’s registration of a domain name obviously intended to create confusion with Complainant, together with its use of that domain name in connection with a fraudulent scheme involving email messages sent to third parties in an attempt to exploit such confusion, is indicative of bad faith”); see also Chevron Intellectual Property LLC v. Richard Bailey / Jacobs, FA 1588430 (Nat. Arb. Forum December 9, 2014) (“The Panel accepts that Respondent’s conduct in impersonating Complainant in furtherance of fraud encompasses the requisite element of competition envisioned by Policy ¶ 4(b)(iii), and finds this is evidence of Respondent’s bad faith use and registration.”). The Panel here finds that Respondent’s fraudulent and disruptive activities amount to bad faith under Policy ¶ 4(b)(iii).
Complainant additionally contends that Respondent is attempting to generate commercial gain by passing itself off as Complainant or an employee of Complainant, and such actions sufficiently demonstrate bad faith registration pursuant to Policy ¶ 4(b)(iv). Complainant argues that Respondent uses the disputed domain name and correspondent e-mail address to pass itself off as Complainant in order to carry out its fraudulent e-mail scam. Previous panels have found bad faith in similar situations, especially when a respondent attempts to pass itself off for fraudulent purposes. See National Oilwell Varco, L.P. v. Craig Wood / NOV, FA 1575951 (Nat. Arb. Forum September 22, 2014)(“We are persuaded by the evidence that Respondent’s use of the <nov-inc.com> domain name to commit a commercial fraud while purporting to act in the name of Complainant, all as alleged in the Complaint, demonstrates bad faith in the registration and use of the domain name.”). The Panel here finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <amr-corporation.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: September 11, 2015
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