national arbitration forum

 

DECISION

 

Delta Corporate Identity, Inc. and Delta Air Lines, Inc. v. WWW Enterprise, Inc.

Claim Number:  FA0510000570132

 

PARTIES

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 WWW Enterprise, Inc. (“Respondent”), P.O. Box 118, 5850 W. 3rd Street, Los Angeles CA 90036.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain name at issue are <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org>, registered with OnlineNIC, Inc.

 

PANEL

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.

 

James A. Carmody, Esq., as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on September 30, 2005; the National Arbitration Forum received a hard copy of the Complaint on October 7, 2005.

 

On October 7, 2005 and October 8, 2005, OnlineNIC, Inc. confirmed by e-mail to the National Arbitration Forum that the <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain names are registered with OnlineNIC, Inc. and that Respondent is the current registrant of the names.  OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, 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 October 12, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 1, 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@wwwdelta.net, postmaster@wwwdelta.org, postmaster@wwwdeltaairlines.net, postmaster@deltaairlinescom.net, and postmaster@flysong.org by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On November 8, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain names are confusingly similar to Complainant’s DELTA and SONG marks.

 

2.      Respondent does not have any rights or legitimate interests in the <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain name.

 

3.      Respondent registered and used the <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain names in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, collectively Delta Corporate Identity, Inc. and Delta Air Lines, Inc., is known as a leader in air transportation services for persons, property, and mail.  Delta’s services extend to the provision of arena facilities for exhibitions, education and training in flight instruction and aviation science, tracking and monitoring of baggage, cargo, mail, freight, package shipments and aircraft parts, in-flight entertainment services and vacation-planning services.  Delta holds the DELTA AIR LINES, DELTA, and SONG marks, registered with the U.S. Patent and Trademark Office (“USPTO”) on April 4, 1950 (Reg. No. 523,611), November 19, 1957 (Reg. No. 654,915), and February 3, 2004 (Reg. No. 2,881,872), respectively.

 

Respondent, WWW Enterprise, Inc., registered the <wwwdelta.net> and <wwwdelta.org> domain names on December 11, 2004, the <wwwdeltaairlines.net> and <deltaairlinescom.net> domain names on January 14, 2005, and the <flysong.org> domain name on April 1, 2005.  All of the disputed domain names refer to a categorized list of links, including categories of “travel,” “services,” “money savers,” “leisure,” and “gambling.”

 

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."

 

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.

 

Identical and/or Confusingly Similar

 

Complainant has offered its registrations of the DELTA AIR LINES, DELTA, and SONG marks as evidence of its rights in the respective marks.  The Panel accepts this evidence as establishing Complainant’s rights in the DELTA AIR LINES, DELTA, and SONG marks pursuant to Policy ¶ 4(a)(i).  See 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.”); Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).

 

The Panel finds that the <wwwdelta.net> and <wwwdelta.org> domain names are confusingly similar to Complainant’s DELTA mark.  The only difference is the addition of “www” and either the “.net” or “.org” top-level domain, which does not significantly distinguish the domain names from the mark.  See Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been established because the prefix "www" does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from the complainant's NEIMAN-MARCUS mark); Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

 

The Panel finds that the <wwwdeltaairlines.net> and <deltaairlinescom.net> domain names are confusingly similar to Complainant’s DELTA AIRLINES mark.  The only difference is the addition of “www” or “com” and the “.net” top-level domain, which does not significantly distinguish the domain names from the mark.  See Dana Corp. v. $$$ This Domain Name Is For Sale $$$, FA 117328 (Nat. Arb. Forum Nov. 19, 2002) (finding the respondent's <wwwdana.com> domain name confusingly similar to the complainant's registered DANA mark because the complainant's mark remains the dominant feature); Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the subject domain name incorporates the VIAGRA mark in its entirety, and deviates only by the addition of the word “bomb,” the domain name is rendered confusingly similar to the complainant’s mark); Daedong-USA, Inc.  v. O’Bryan Implement Sales, FA 210302 (Nat. Arb. Forum Dec. 29, 2003) (“Respondent's domain name, <kioti.com>, is identical to Complainant's KIOTI mark because adding a top-level domain name is irrelevant for purposes of Policy ¶ 4(a)(i).”).

 

The Panel finds that the <flysong.org> domain name is confusingly similar to Complainant’s SONG mark.  The only difference is the addition of the word “fly,” which does not significantly distinguish the domain name from the mark and is related to Complainant’s business.  See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent’s domain name <marriott-hotel.com> is confusingly similar to the complainant’s MARRIOTT mark).

 

Complainant has established Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Respondent is using the disputed domain names to refer Internet users seeking Complainant to competitor and third-party sites, including gambling and adult dating services.  The Panel finds that appropriating another’s mark to refer Internet traffic to its competitors and third-party gambling and adult sites is neither a bona fide offering of a good or service, pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use, pursuant to Policy ¶ 4(c)(iii).  See 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use); Clear Channel Commc’ns, Inc. v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding that the respondent, as a competitor of the complainant, had no rights or legitimate interests in a domain name that utilized the complainant’s mark for its competing website).

 

Additionally, Respondent, in registering <wwwdelta.net>, <wwwdelta.org>, and <wwwdeltaairlines.net>, created domain names that merely append “www” to Complainant’s marks.  This practice, known as “typosquatting,” attempts to siphon off the mark holder’s customers by preying on the Internet user’s typing mistakes when entering a domain name in the URL bar of a browser.  Respondent’s practice of typosquatting is further evidence that it lacks rights and legitimate interests pursuant to Policy 4(a)(ii).  See Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where the respondent used the typosquatted <wwwdewalt.com> domain name to divert Internet users to a search engine webpage, and failed to respond to the complaint); RE/MAX Int’l, Inc. v. Seocho, FA 142046 (Nat. Arb. Forum Feb. 25, 2003) (finding that the respondent has no rights or legitimate interests in the <wwwremax.com> domain name as it is merely using the complainant’s mark to earn profit from pop-up advertisements).

 

There is nothing in the record, including the WHOIS registration information, which indicates that Respondent is commonly known by any of the disputed domain names pursuant to Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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.”).

 

Complainant has established Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Respondent has registered the <wwwdelta.net>, <wwwdelta.org>, and <wwwdeltaairlines.net> domain names to generate Internet traffic by relying on users’ typing mistakes.  The Panel finds that this practice is evidence of bad faith registration and use pursuant to Policy 4(a)(iii).  See Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the ‘www’ portion of [a] web-address,” which was evidence that the domain name was registered and used in bad faith); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“In typosquatting cases, such as this one, it would be difficult for Respondent to prove to the Panel that it did not have actual knowledge of Complainant’s distinctive MEDLINE mark when it registered the infringing [<wwwmedline.com>] domain name.”).

 

Respondent is appropriating Complainant’s marks in the <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain names to lead Complainant’s customers to travel-related websites, some of which subsequently lead to Complainant’s competitors.  The Panel finds that this is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).  See S. Exposure v. S.  Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).

 

Additionally, Respondent is appropriating the <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain names to lead Internet users to gambling and adult-oriented dating sites.  The Panel infers that Respondent is receiving click-through fees for traffic referrals.  Therefore, Respondent is appropriating Complainant’s mark in confusingly similar domain names for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Mars, Inc. v. Double Down Magazine, D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent linked the domain name <marssmusic.com>, which is identical to the complainant’s mark, to a gambling website); see also Youtv, Inc. v. Alemdar, FA 94243 (Nat. Arb. Forum Apr. 25, 2000) (finding bad faith where the respondent attracted users to his website for commercial gain and linked his website to pornographic websites).

 

Complainant has established Policy ¶ 4(a)(iii).

 

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 <wwwdelta.net>, <wwwdelta.org>, <wwwdeltaairlines.net>, <deltaairlinescom.net>, and <flysong.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

James A. Carmody, Esq., Panelist

Dated:  November 22, 2005

 

 

Click Here to return to the main Domain Decisions Page.

 

Click Here to return to our Home Page

 

National Arbitration Forum