DECISION

 

Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Lisa Katz / Domain Protection LLC

Claim Number: FA1611001705265

 

PARTIES

Complainant is Alaska Air Group, Inc. and its subsidiary, Alaska Airlines (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Lisa Katz / Domain Protection LLC (“Respondent”), Texas, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <asaskaair.com>, (‘the Domain Name’) registered with Fabulous.com Pty Ltd.

 

PANEL

The undersigned certifies that 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.

 

Dawn Osborne of Palmer Biggs IP as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on November 30, 2016; the Forum received payment on November 30, 2016.

 

On December 4, 2016, Fabulous.com Pty Ltd confirmed by e-mail to the Forum that the <asaskaair.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 December 5, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 2016 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@asaskaair.com.  Also on December 5, 2016, 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 December 30, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant's contentions can be summarized as follows:

 

Complainant is the owner of the registered trade mark ALASKA AIRLINES in the USA for, inter alia, air transportation services with first use in commerce recorded as 1942.

 

The Domain Name is identical and confusingly similar to Complainant’s ALASKA AIRLINES mark. The relevant comparison is between the second level portion of the Domain Name and Complainant’s marks. The Domain Name differs only by a single character from Complainant’s mark and is a classic example of typosquatting i.e., it is confusingly similar by design.

 

Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent has not been commonly known by the Domain Name. It has no trade mark rights in the Domain Name. Respondent is not affiliated with Complainant in any way and Complainant has not given the Respondent permission to use its mark. A cease and desist letter was sent but no reply was received. Accordingly all reasonable inferences of fact in the Complaint should be deemed true.

 

Respondent is using the Domain Name to redirect unsuspecting Internet users to a web site featuring generic links to third party web sites some of which compete directly with Complainant’s business. This is not a bona fide offering of goods and services or a legitimate noncommercial or fair use.

 

The earliest date on which Respondent registered the Domain Name was 2005, which is significantly later than Complainant’s first use in commerce of its mark in 1942, and ten years after Complainant’s registration of its domain name alaskaair.com.

 

Using the Domain Name for third party links that compete with Complainant's registration and use in bad faith as it attracts and misleads consumers for profit and disrupts Complainant’s business. Respondent has caused the web sites reachable by the Domain Name to display content and/or keywords directly related to Complainant’s business which is further evidence of bad faith intent as it removes doubt as to whether the misspelling was intentionally designed to improperly capitalize on Complainant’s famous mark and its related business.

 

Further typosquatting itself is evidence of bad faith. Respondent is a serial cybersquatter, having been subject to multiple prior UDRP decisions demonstrating an ongoing pattern of such behavior. Respondent holds a portfolio of such typosquatting domain names.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

  

FINDINGS

 

Complainant is the owner of the registered trade mark ALASKA AIRLINES in the USA for, inter alia, air transportation services with first use in commerce recorded as 1942.

 

The earliest date on which Respondent registered the Domain Name was 2005 which is significantly after Complainant’s first use in commerce of its mark in 1942 and ten years after Complainant’s registration of its domain name alaskaair.com.

 

The Domain Name has been used to point to a web site featuring third party links some of which compete with Complainant.

 

DISCUSSION

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(f), 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 (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.”).

 

 Identical and/or Confusingly Similar

The Domain Name consists of a sign similar to Complainant’s registered ALASKA AIRLINES mark, with an ‘S’ substituted for the ‘L’ of Alaska and ‘Air’ being a common abbreviation for ‘airline(s)’. The gTLD is .com.

 

Abbreviating airlines to ‘air’ does not distinguish the Domain Name from Complainant’s mark. See Olympic Airlines v MC & I, Inc.c/o George Trivizas, FA 649690 (Forum Apr. 14, 2006).

 

Misspelling of a mark is likewise not enough to distinguish a domain from a mark. See Royal Bank of Scotland Grp. Plc et al v Demand Domains, FA 714952 (Forum Aug. 2, 2006). 

 

GTLDs in general do not serve to distinguish a domain name from a complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which Complainant has rights.

 

As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.

 

Rights or Legitimate Interests

Respondent does not appear to be commonly known by the Domain Name and is not making a legitimate noncommercial or fair use of it. The site appears to be set up for commercial benefit to compete with Complainant using the latter's intellectual property rights to make a profit by pointing to third party links unconnected with Complainant. See ALPITOUR SpA v Albloushi FA 888651 (Forum. Feb. 26, 2007) (rejecting the Respondent's contentions of rights and legitimate interests because the respondent was merely using the domain name to operate a web site containing links to various competing commercial web sites which the panel did not find to be bona fide use in relation to goods and service under the Policy. )

 

As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

Panellist agrees with Complainant that the Domain Name is an example of typosquatting or a deliberate misspelling of a complainant’s mark in order to take advantage of common typing errors. Typosquatting is bad faith in and of itself under 4. (b) (iii) of the Policy. See Gap Inc./Old Navy (Apparel) LLC v Jiri Capcuch, FA 140500156139 (Forum July 2, 2014). The Panel also notes that Respondent owns several other domain names that appear to be typosquatted famous brands and has adverse findings against it for typosquatting under the UDRP.

 

Respondent's use of the sites connected to the Domain Name is taking advantage in that it is commercial and Respondent is using the Domain Name to make a profit from linking to third party web sites in a confusing and competing manner. The Panel, accordingly, also holds that Respondent has intentionally attempted to attract for commercial gain Internet users to his websites by creating a likelihood of confusion with Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site and the services thereon. (See Dovetail Ventures LLC v Klayton Thorpe, FA 1506001625786 (Forum Aug. 2, 2015)(holding that the respondent had acted in bad faith under Policy 4(b)(iv) where it used the disputed domain name to host a variety of hyperlinks unrelated to the complainant).

 

As such, the Panel holds that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under both 4(b)(iii) and (iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <asaskaair.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated:  January 9, 2017