Delta Corporate Identity, Inc. and Delta Air Lines, Inc. v. SearchTerms c/o Domain Admin
Claim Number: FA0511000590678
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 SearchTerms c/o Domain Admin (“Respondent”), General Delivery, Georgetown, Grand Cayman, GT, KY.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <dleta.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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 31, 2005; the National Arbitration Forum received a hard copy of the Complaint on November 3, 2005.
On November 4, 2005, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <dleta.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. 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 November 7, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 28, 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@dleta.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 5, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <dleta.com> domain name is confusingly similar to Complainant’s DELTA mark.
2. Respondent does not have any rights or legitimate interests in the <dleta.com> domain name.
3. Respondent registered and used the <dleta.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, founded in 1928, owns registrations in several countries for its DELTA family of marks, including the United States, United Kingdom and Cayman Islands. Most of Complainant’s marks are associated with travel-related services, including air travel and other services provided by Complainant’s airline. Complainant registered its DELTA mark in the United States on November 19, 1957 (Reg. No. 654,915), in the United Kingdom on September 18, 1992 (Reg. No. 1,275,452) and in the Cayman Islands on or about March 12, 2002 (Reg. No. 1,275,452).
Respondent registered the <dleta.com> domain name on May 18, 2004. Respondent is using the domain name to operate a directory website that displays links to various travel-related websites, many of which compete with Complainant.
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 has provided evidence of its registration of the DELTA mark with the USPTO. Complainant’s registration establishes Complainant’s rights in the mark 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.”); see also 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 <dleta.com> domain name differs from Complainant’s DELTA mark only by transposing the letters “l” and “e.” Typographical errors are not sufficient to overcome a finding of confusing similarity. In fact, the practice of registering a domain name comprised of a registered mark with a typographical error is known as typosquatting, which is evidence of confusing similarity under Policy ¶ 4(a)(i). See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”); see also 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).
The Panel determines that Complainant has satisfied Policy ¶ 4(a)(i).
The initial burden under Policy ¶ 4(a)(ii) is on Complainant to prove that Respondent does not have rights or legitimate interests in the disputed domain name. Once Complainant has made a prima facie case, the burden then shifts to Respondent to show that it does have rights or legitimate interests pursuant to the directions provided in Policy ¶ 4(c). See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (describing the burden shifting from the complainant to the respondent regarding rights and legitimate interests); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”). The Panel finds that Complainant has presented a prima facie case, and the Panel now chooses to consider whether an evaluation of all the evidence demonstrates rights or legitimate interests for Respondent under Policy ¶ 4(c).
Complainant asserts that there is no evidence in the record to suggest that Respondent is commonly known by the <dleta.com> domain name. Furthermore, Complainant contends that it has not authorized or licensed Respondent to register domain names that incorporate Complainant’s DELTA mark or any versions thereof. Respondent has not come forward with any evidence to contradict Complainant’s assertions, and the Panel finds that Respondent has not established rights or legitimate interests under 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.”); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark).
Respondent is using the <dleta.com> domain name, a typosquatted version of Complainant’s DELTA mark, to operate a directory website that displays links to various websites that offer products and services in competition with Complainant. The Panel cannot consider it a bona fide offering of goods or services under Policy ¶ 4(c)(i) where Respondent appropriates a typosquatted version of Complainant’s mark to lead Internet users to Complainant’s competitors. Furthermore, using the disputed domain name in such a manner for the purpose of earning referral fees does not constitute a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See MSNBC Cable, LLC v. Tysys.com, D2000-1204 (WIPO Dec. 8, 2000) (finding no rights or legitimate interests in the famous MSNBC mark where the respondent attempted to profit using the complainant’s mark by redirecting Internet traffic to its own website); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Nat’l Ass’n of Prof’l Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
By using the typosquatted <dleta.com> domain name to connect Internet users to Respondent’s website offering travel-related services, Respondent is attempting to benefit from the goodwill associated with Complainant’s DELTA mark by creating a likelihood of confusion regarding Complainant’s affiliation with Respondent’s travel website. Such use of a confusingly similar version of Complainant’s mark to increase Internet traffic to Respondent’s directory website to earn referral fees is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
Furthermore, Respondent’s attempts to lead Internet users to its commercial website by taking advantage of a possible typographical error made by Complainant’s consumers who inadvertently mistype Complainant’s <delta.com> domain name constitute typosquatting. Use of a typosquatted version of Complainant’s DELTA mark is further evidence of bad faith registration and use under the Policy. See 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.”); see also Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dleta.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: December 14, 2005
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page