Delta Corporate Identity, Inc. and Delta
Air Lines, Inc. v. dltaairlines.com and deltaaairlines.com c/o Hanna El Hinn
Claim
Number: FA0508000548217
Complainants are
Delta Corporate Identity, Inc. and Delta Air Lines, Inc. (collectively “Complainant”), represented by
Ryan M. Kaatz of Ladas & Parry,
Digital Brands Practice, 224
South Michigan Avenue, Chicago, IL 60604.
Respondent is dltaairlines.com
and deltaaairlines.com c/o Hanna El Hinn (“Respondent”), P.O. Box
56002, Montreal, ZC H3Z 3G3.
The
domain names at issue are <deltaaairlines.com> and <dltaairlines.com>,
registered with Enom, 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 National Arbitration Forum electronically on August
25, 2005; the National Arbitration Forum received a hard copy of the Complaint
on August 30, 2005.
On
August 31, 2005, Enom, Inc. confirmed by e-mail to the National Arbitration
Forum that the <deltaaairlines.com> and <dltaairlines.com>
domain names are registered with Enom, Inc. and that Respondent is the current
registrant of the names. Enom, Inc. has
verified that Respondent is bound by the Enom, Inc. registration agreement and
has thereby agreed to resolve domain-name disputes brought by third parties in
accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the
"Policy").
On
September 6, 2005, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of September 26, 2005 by which Respondent could file a response to
the Complaint, was transmitted to Respondent via e-mail, post and fax, to all
entities and persons listed on Respondent's registration as technical,
administrative and billing contacts, and to postmaster@deltaaairlines.com and postmaster@dltaairlines.com
by e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On
September 30, 2005, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the National Arbitration Forum appointed the
Honorable Charles K. McCotter, Jr. (Ret.) 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." 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <deltaaairlines.com>
and <dltaairlines.com> domain names are confusingly similar to
Complainant’s DELTA AIR LINES mark.
2. Respondent does not have any rights or
legitimate interests in the <deltaaairlines.com> and <dltaairlines.com>
domain names.
3. Respondent registered and used the <deltaaairlines.com>
and <dltaairlines.com> domain names in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant is a
major provider of air transportation services for persons, property and
mail. Complainant was founded in 1928
and serves approximately 217 domestic cities in forty-six states, the District
of Columbia, Puerto Rico and the U.S. Virgin Islands. In association with its domestic and international partners,
Complainant’s route network covers 490 destinations in eighty-five countries.
Complainant owns
numerous marks which it has registered with the United States Patent and
Trademark Office (“USPTO”) and the Canadian Intellectual Property Office
(“CIPO”). Most relevant in this instance
is Complainant’s DELTA AIR LINES mark (USPTO Reg. No. 523,611 issued April 4,
1950 and CIPO Reg. No. TMA222,350 issued August 12, 1977). Additionally, Complainant operates at
website at the <delta.com> domain name.
Respondent
registered the <deltaaairlines.com> and <dltaairlines.com>
domain names on February 11, 2002 and February 13, 2005, respectively. Respondent is using the domain names to lead
Internet users to Complainant’s official website, presumably for the purpose of
collecting referral or affiliate fees.
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."
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.”).
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.
Complainant
asserts rights in the DELTA AIR LINES mark based on its registration of the
mark with the USPTO and numerous trademark authorities worldwide. It is well established under the Policy that
a complainant’s registration of a mark with a federal authority establishes a prima
facie case of the complainant’s rights.
See Janus Int’l Holding Co.
v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (“Panel decisions have held
that registration of a mark is prima
facie evidence of validity, which creates a rebuttable presumption that the
mark is inherently distinctive.”); see also Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the
USPTO establishes Complainant's rights in the mark.”).
The <deltaaairlines.com> and <dltaairlines.com>
domain names differ from Complainant’s DELTA AIR LINES mark with the addition
of the letter “a” and the omission of the letter “e” from the term “Delta,”
respectively. This is evidence of
typosquatting, a practice that involves taking advantage of simple misspellings
of a complainant’s mark to divert Internet users searching for the
complainant. The Panel determines that
Respondent’s use of typosquatting renders the disputed domain names confusingly
similar to Complainant’s mark. See
Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that
the <neimanmacus.com> domain name was a
simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was
evidence that the domain name was confusingly similar to the mark); see
also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29,
2001) (finding the <belken.com> domain name confusingly similar to the
complainant's BELKIN mark because the name merely replaced the letter “i” in
the complainant's mark with the letter “e”).
Furthermore, the addition of the generic top-level domain “.com” is
irrelevant in determining similarity under Policy ¶ 4(a)(i). See Busy Body, Inc. v. Fitness
Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (finding that "the
addition of the generic top-level domain (gTLD) name ‘.com’
is . . . without legal significance since use of a gTLD is
required of domain name registrants").
Accordingly, the
Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has
the initial burden of proving that Respondent lacks rights and legitimate
interests in the disputed domain names.
In Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l,
D2001-0376 (WIPO May 14, 2001), the panel held:
Proving
that the Respondent has no rights or legitimate interests in respect of the
Domain Name requires the Complainant to prove a negative. For the purposes of
this sub paragraph, however, it is sufficient for the Complainant to show a
prima facie case and the burden of proof is then shifted on to the shoulders of
Respondent. In those circumstances, the
common approach is for respondents to seek to bring themselves within one of
the examples of paragraph 4(c) or put forward some other reason why they can
fairly be said to have a relevant right or legitimate interests in respect of
the domain name in question.
Id.; see also Do The Hustle, LLC
v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that where the
complainant has asserted that the respondent has no rights or legitimate interests
with respect to the domain name it is incumbent on the respondent to come
forward with concrete evidence rebutting this assertion because this
information is “uniquely within the knowledge and control of the respondent”). Thus, having found that Complainant has met
its initial burden by establishing a prima facie case, the Panel will
now analyze whether Respondent has met its burden to establish rights or
legitimate interests in the disputed domain names under Policy ¶ 4(c).
Complainant
asserts that Respondent is not commonly known by the disputed domain names and
the WHOIS information for the disputed domain names lists Respondent as “Hanna
El Hinn.” Furthermore, Complainant
contends that it has not authorized or licensed Respondent to use any version
of the DELTA AIR LINES mark for any purpose.
Because Respondent has failed to present any evidence to the contrary,
the Panel is permitted to accept Complainant’s assertions that Respondent is
not commonly known by the disputed domain names. The Panel, therefore, finds that Respondent has not established
rights or legitimate interests in the disputed domain names pursuant to Policy
¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the
WHOIS contact information for the disputed domain [name], one can infer that
Respondent, Onlyne Corporate Services11, is not commonly known by the name
‘welsfargo’ in any derivation.”); see also RMO, Inc. v.
Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶
4(c)(ii) "to require a showing that one has been commonly known by the
domain name prior to registration of the domain name to prevail"); see
also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum
Dec. 1, 2004) (finding that because Respondent failed to submit a Response,
“Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel
accepts as true all reasonable allegations . . . unless clearly contradicted by
the evidence.”).
Complainant
contends that Respondent is using the <deltaaairlines.com> and <dltaairlines.com>
domain names to redirect Internet users to Complainant’s official website,
presumably for the purpose of receiving referral fees. Respondent’s use of typosquatted versions of
Complainant’s well-known DELTA AIR LINES mark for Respondent’s commercial
benefit does not constitute a bona fide offering of goods or services
under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶
4(c)(iii). See Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the
respondent had no rights or legitimate interests pursuant to Policy ¶ 4(a)(ii) where it used the domain name
<deluxeform.com> to redirect users to the complainant’s
<deluxeforms.com> domain name and to receive a commission from the
complainant through its affiliate program); see also Sports
Auth. Mich., Inc. v. Domhold Co., FA 135011 (Nat. Arb. Forum Jan. 9, 2003)
(finding that registering a domain name which differs by one letter from the
complainant’s commercial website, and using that domain name to redirect
Internet consumers to the complainant’s website as a part of the complainant’s
affiliate program is not a bona fide offering of goods or services nor a
noncommercial use of the domain name).
Additionally, in failing to submit a response
to Complainant’s contentions, Respondent has neglected to provide any evidence
that would challenge Complainant’s prima facie case. The Panel, therefore, finds that Respondent
has not established rights or legitimate interests in the disputed domain names
under Policy ¶ 4(c)(i) or (iii). See
Euromarket Designs, Inc. v. Domain For Sale VMI, D2000-1195 (WIPO Oct. 26,
2000) (“In the absence of direct evidence, the complainant and the panel must
resort to reasonable inferences from whatever evidence is in the record. In addition . . . Paragraph 14(b) of the
Rules [authorizes] a panel to draw such inferences from respondent’s failure to
respond ‘as it considers appropriate.’”).
Consequently,
the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant
asserts that Respondent is seeking commercial benefit in using misspelled
versions of Complainant’s DELTA AIR LINES mark to filter Internet users seeking
Complainant’s website through Respondent’s domain names. Although the domain names eventually resolve
to Complainant’s website, due to the similarity between the domain names and
Complainant’s mark, Internet users who access Complainant’s website via these
misspelled domain names are likely to become confused as to Complainant’s
affiliation with the resulting website.
Respondent’s use of the <deltaaairlines.com> and <dltaairlines.com>
domain names to capitalize on the likelihood of such confusion is evidence of
bad faith registration and use under Policy ¶ 4(b)(iv). See Am.
Univ. v. Cook, FA 208629 (Nat. Arb. Forum
Dec. 22, 2003) (“Registration and use of a domain name that incorporates
another's mark with the intent to deceive Internet users in regard to the
source or affiliation of the domain name is evidence of bad faith.”); see
also Sports Auth. Mich., Inc. v. Internet Hosting, FA 124516
(Nat. Arb. Forum Nov. 4, 2002) (“Redirecting Internet users attempting to reach
a complainant’s website in order to gain a profit off of a complainant is one
example of bad faith use and registration under the Policy.”).
The disputed domain
names registered by Respondent consist of misspelled versions of Complainant’s
well-known DELTA AIR LINES mark. Thus, Respondent is engaging in the practice
of “typosquatting” by taking advantage of potential typographical errors made
by Internauts intending to reach a website corresponding to Complainant’s DELTA
AIR LINES mark. Under the Policy,
typosquatting is sufficient evidence of bad faith registration and use of the
disputed domain names. The Panel,
therefore, finds that Respondent registered and used the disputed domain names
in bad faith pursuant to Policy ¶ 4(a)(iii). See Canadian Tire Corp. v. domain adm’r
no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (finding
the respondent registered and used the domain name in bad faith because the
respondent “created ‘a likelihood of confusion with the complainant’s mark as
to the source, sponsorship, affiliation, or endorsement of the Respondent’s web
site or location’. . . through Respondent’s persistent practice of
‘typosquatting’”); see also Nat’l Ass’n of Prof’l Baseball League,
Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the
intentional misspelling of words with [the] intent to intercept and siphon off
traffic from its intended destination, by preying on Internauts who make common
typing errors. Typosquatting is
inherently parasitic and of itself evidence of bad faith.”).
Accordingly, the
Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <deltaaairlines.com> and <dltaairlines.com>
domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr.
(Ret.), Panelist
Dated:
October 12, 2005
Click Here to return
to the main Domain Decisions Page.
Click Here to return to our Home
Page
National Arbitration Forum