Delta Air Lines, Inc. v PRIVATE EYE / MUHAMMAD FAISAL / WASEEM A. ALI / MICRON WEB SERVICES / STEVE DAVID / STEVE, LLC / LISA ALEX / IRFAN KHAN / HAMMY KAY
Claim Number: FA1712001761239
Complainant is Delta Air Lines, Inc. (“Complainant”), represented by Kelly O. Wallace of Wellborn & Wallace, LLC, Georgia, USA. Respondent is PRIVATE EYE / MUHAMMAD FAISAL / WASEEM A. ALI / MICRON WEB SERVICES / STEVE DAVID / STEVE, LLC / LISA ALEX / IRFAN KHAN / HAMMY KAY (“Respondent”), Norway.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <com-freedelta.us>, <deltafreeair.us>, <deltafreeairline.us>, <deltafreeairlines.us>, <freedelta.us>, <freedeltaairline.us>, <freedeltaairlines.us>, <ticketsfreedelta.us>, <deltatickets4u.us>, <deltaair-ticket.us>, <deltathanks.us>, <deltaair-coms.us>, <deltaair-2017.us>, <deltaair-freeticket.us>, <delta-ticket2017.us>, <mydeltaticket.us>, <deltaairfree.us>, <deltaairfreeticket.us>, <deltaair-ticket2017.us>, <deltatrack.us>, <deltabest.us>, <deltablue.us>, <deltaflying.us>, <deltaflights.us>, <cheapdeltaticket.us>, <ilovedelta.us>, and <realdeltaticket.us>, registered with NameCheap, Inc.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 4, 2017; the Forum received payment on December 4, 2017.
On Dec 05, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the <com-freedelta.us>, <deltafreeair.us>, <deltafreeairline.us>, <deltafreeairlines.us>, <freedelta.us>, <freedeltaairline.us>, <freedeltaairlines.us>, <ticketsfreedelta.us>, <deltatickets4u.us>, <deltaair-ticket.us>, <deltathanks.us>, <deltaair-coms.us>, <deltaair-2017.us>, <deltaair-freeticket.us>, <delta-ticket2017.us>, <mydeltaticket.us>, <deltaairfree.us>, <deltaairfreeticket.us>, <deltaair-ticket2017.us>, <deltatrack.us>, <deltabest.us>, <deltablue.us>, <deltaflying.us>, <deltaflights.us>, <cheapdeltaticket.us>, <ilovedelta.us>, and <realdeltaticket.us> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On December 12, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2018 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@com-freedelta.us, postmaster@deltafreeair.us, postmaster@deltafreeairline.us, postmaster@deltafreeairlines.us, postmaster@freedelta.us, postmaster@freedeltaairline.us, postmaster@freedeltaairlines.us, postmaster@ticketsfreedelta.us, postmaster@deltatickets4u.us, postmaster@deltaair-ticket.us, postmaster@deltathanks.us, postmaster@deltaair-coms.us, postmaster@deltaair-2017.us, postmaster@deltaair-freeticket.us, postmaster@delta-ticket2017.us, postmaster@mydeltaticket.us, postmaster@deltaairfree.us, postmaster@deltaairfreeticket.us, postmaster@deltaair-ticket2017.us, postmaster@deltatrack.us, postmaster@deltabest.us, postmaster@deltablue.us, postmaster@deltaflying.us, postmaster@deltaflights.us, postmaster@cheapdeltaticket.us, postmaster@ilovedelta.us, postmaster@realdeltaticket.us. Also on December 12, 2017, 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 January 3, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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, Delta Air Lines, Inc., has rights in the DELTA and DELTA AIR LINES marks based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. DELTA—Reg. No. 654,915, registered Nov. 19, 1957; DELTA AIR LINES—Reg. No. 523,611, registered Arp. 4, 1950). Respondent’s domain names are confusingly similar to Complainant’s DELTA and/or DELTA AIR LINES marks, as the domain names each include the precise term DELTA and/or DELTA AIR LINES.
Respondent has no rights or legitimate interests in the domain names. Complainant has not authorized Respondent to use its marks. Respondent’s use of the disputed domain names does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the domain names each resolve to an identical website which induces Internet users into completing a survey by means of fraudulent offers purportedly from Complainant.
Respondent registered and is using the domain names in bad faith. Respondent’s use of the domain names to offer fraudulent surveys is bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant contends that each domain was registered with the same registrar; includes the DELTA mark; and did not use a privacy service but provided false or incomplete registrant information. Additionally, most of the domain names include one or more of the terms “free,” “ticket,” “air,” “com,” and/or “2017.” Further, all but two of the domain names were registered during a six-week period from June 1 through July 14, 2017; and the two domain names not registered in that period list registration information matching information used in connection with the other domain names. Finally, each of the websites resolving from the domain names displays the exact same unlawful and infringing content. The Panel finds that Complainant has shown that the listed entities are jointly controlled by a single Respondent who is using multiple aliases.
Complainant, Delta Air Lines, Inc., has rights in the DELTA and DELTA AIR LINES marks based upon its registration of the mark with the USPTO (e.g. DELTA—Reg. No. 654,915, registered Nov. 19, 1957; DELTA AIR LINES—Reg. No. 523,611, registered Apr. 4, 1950). Respondent’s domain names are confusingly similar to Complainant’s DELTA and/or DELTA AIR LINES marks.
Respondent registered the disputed domain names between March 20, 2017, and July 14, 2017.
Respondent has no rights or legitimate interests in the domain names. Rather, the domain names each resolve to an identical website which induces Internet users into completing a survey by means of fraudulent offers purportedly from Complainant.
Respondent registered and is using the domain names in bad faith. Respondent’s use of the domain names to offer fraudulent surveys is 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 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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision
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.”).
Complainant has rights in the DELTA and DELTA AIR LINES marks under Policy ¶ 4(a)(i) based upon registration of the marks with the USPTO. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <com-freedelta.us>, <deltafreeair.us>, <deltafreeairline.us>, <deltafreeairlines.us>, <freedelta.us>, <freedeltaairline.us>, <freedeltaairlines.us>, <ticketsfreedelta.us>, <deltatickets4u.us>, <deltaair-ticket.us>, <deltathanks.us>, <deltaair-coms.us>, <deltaair-2017.us>, <deltaair-freeticket.us>, <delta-ticket2017.us>, <mydeltaticket.us>, <deltaairfree.us>, <deltaairfreeticket.us>, <deltaair-ticket2017.us>, <deltatrack.us>, <deltabest.us>, <deltablue.us>, <deltaflying.us>, <deltaflights.us>, <cheapdeltaticket.us>, <ilovedelta.us>, and <realdeltaticket.us> domain names are confusingly similar to the DELTA or DELTA AIR LINES mark, as each of the names include the precise term DELTA and/or DELTA AIR LINES. Each of the domain names adds one or more generic terms such as “free,” “air,” “ticket,” “com,” or “cheap” to one or both of the fully incorporated marks, as well as appending the country code top-level domain (“ccTLD”) “.us.” Five of the domain names also include added hyphens.
Respondent does not have rights or legitimate interests in the disputed domain names. Complainant has not authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain names. Where a response is lacking, the WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017). The WHOIS information of record identifies the registrant of the domain names as follows: “Private Eye;” “Muhammad Faisal”, “Waseem A Ali / Micron Web Services”, “Steve David / Steve LLC”, “Lisa Alex”, “ifran khan”, and “hammy kay”.
There is nothing in the available evidence which indicates that Respondent has rights in a mark identical to any of the disputed domain names, which would serve to satisfy Policy ¶ 4(c)(i). See Pepsico, Inc. v. Becky, FA 117014 (Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).
Respondent fails to use the disputed domain names to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). Respondent uses each of the domain names to host fraudulent survey websites. See Victoria’s Secret Stores Brand Mgmt., Inc. v. egyGossip.com, FA 1288062 (Forum Nov. 20, 2009) (finding that Respondent lacked rights and legitimate interests where the disputed domain name was used to solicit the completion of a survey by Internet users); see also Homer TLC, Inc. v. Wang, FA 1336037 (Forum Aug. 23, 2010) (holding that, where a disputed domain name purports to offer Internet users a gift card as compensation for filling out surveys, the respondent’s use of the disputed domain name amounts to neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Complainant having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <com-freedelta.us>, <deltafreeair.us>, <deltafreeairline.us>, <deltafreeairlines.us>, <freedelta.us>, <freedeltaairline.us>, <freedeltaairlines.us>, <ticketsfreedelta.us>, <deltatickets4u.us>, <deltaair-ticket.us>, <deltathanks.us>, <deltaair-coms.us>, <deltaair-2017.us>, <deltaair-freeticket.us>, <delta-ticket2017.us>, <mydeltaticket.us>, <deltaairfree.us>, <deltaairfreeticket.us>, <deltaair-ticket2017.us>, <deltatrack.us>, <deltabest.us>, <deltablue.us>, <deltaflying.us>, <deltaflights.us>, <cheapdeltaticket.us>, <ilovedelta.us>, and <realdeltaticket.us> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 16, 2018
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