Delta
Corporate Identity, Inc. and Delta Air Lines, Inc. v. Digi Real Estate
Foundation
Claim Number: FA0511000590680
Complainant is 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 Digi Real Estate Foundation (“Respondent”), P.O. Box 7-5324, Panama City, N7 8DJ, Panama.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <deltaarlines.com>, <detaairlines.com>, and <deltaailines.com>, registered with eNom, Inc.
The undersigned certifies that she acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically October 31, 2005; the National Arbitration Forum received a hard copy of the Complaint November 2, 2005.
On November 4, 2005, eNom, Inc. confirmed by e-mail to the National Arbitration Forum that the <deltaarlines.com>, <detaairlines.com>, and <deltaailines.com> domain names are registered with eNom, Inc. and that Respondent is the current registrant of the names. eNom, Inc. verified that Respondent is bound by the eNom, Inc. registration agreement and thereby has 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 14, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 5, 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@deltaarlines.com, postmaster@detaairlines.com, and postmaster@deltaailines.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 9, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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. The domain names that Respondent registered, <deltaarlines.com>, <detaairlines.com>, and <deltaailines.com>, are confusingly similar to Complainant’s DELTA AIR LINES mark.
2. Respondent has no rights to or legitimate interests in the <deltaarlines.com>, <detaairlines.com>, and <deltaailines.com> domain names.
3. Respondent registered and used the <deltaarlines.com>, <detaairlines.com>, and <deltaailines.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Delta Corporate Identity, Inc. and Delta Air Lines, collectively, provide air transportation services for persons, property, and mail. Complainant’s services, including those of its affiliates, 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, flight, package shipments and aircraft parts, in-flight entertainment services and vacation-planning services.
Complainant registered the DELTA AIR LINES mark October 9, 1973, with the U.S. Patent and Trademark Office (“USPTO”) (reg. no. 970,418).
Respondent registered the <deltaarlines.com>, <detaairlines.com>, and <deltaailines.com> domain names June 8, 2004, May 25, 2004, and June 2, 2004, respectively. The websites associated with these disputed domain names offer links titled “Delta Airline Deals,” “International Air Deals,” and “Northwest Airlines Ticket.” These links lead to subsequent websites that offer to sell Complainant’s and its competitors’ services
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 will draw such inferences as the Panel 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 Complainant to 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 requested the Panel to consider two other domain names (<deltaairlinse.com> and <edltaairlines.com>) in addition to the three that are the subject of this Complaint. In its initial filing, Complainant listed five domain names; however, the WHOIS registration information was not the same for the five domain names, and Complainant withdrew two to conform with the Policy and to fulfill NAF’s deficiency check process. To date, Complainant has not initiated a separate Complaint disputing the <deltaairlinse.com> and <edltaairlines.com> domain names.
As provided in Policy ¶ 4(f), Complainant asked the Panel to consolidate. However, the Panel finds that it cannot entertain Complainant’s request for consolidation because the rule states that the Panel “may consolidate all cases before it.” Because Complainant did not file a Complainant concerning <deltaairlinse.com> and <edltaairlines.com>, the two additional domain names are not the subject of any case before the Panel. Further, Complainant’s request is not a request for consolidation but, rather, joinder, which this Panel will not entertain.
Complainant asserts its USPTO registration of the DELTA AIR
LINES mark to demonstrate its rights.
The Panel accepts Complainant’s trademark registration as evidence of
its rights in the DELTA AIR LINES 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.”); 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 <deltaarlines.com>, <detaairlines.com>,
and <deltaailines.com> domain names are confusingly similar to
Complainant’s DELTA AIR LINES mark. The
only difference is the elimination of the spaces between words and the omission
of an “i,” “l,” or “r,” which does not significantly distinguish the domain
names from the mark. See Wembley
Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding
that the domain name <wembleystadium.net> is identical to the WEMBLEY
STADIUM mark); State Farm Mut. Auto. Ins. Co. v. Try Harder & Co.,
FA 94730 (Nat. Arb. Forum June 15, 2000) (finding that the domain name
<statfarm.com> is confusingly similar to the complainant’s STATE FARM
mark); Hewlett-Packard Co. v. Zuccarini, FA 94454 (Nat. Arb. Forum May
30, 2000) (finding the domain name <hewlitpackard.com> to be identical or
confusingly similar to the complainant’s HEWLETT-PACKARD mark).
The Panel finds that Complainant
satisfied Policy ¶ 4(a)(i).
Complainant established that it has rights to and legitimate
interests in the mark contained in misspelled form in the disputed domain
names. Complainant alleged that Respondent has no such rights. Respondent is using the disputed domain
names to refer Internet traffic to Complainant and its competitors. The Panel finds that appropriating Complainant’s
mark in confusingly similar domain names is not a bona fide offering of
a good or service pursuant to Policy ¶ 4(c)(i) and it is not a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Nike, Inc. v. Dias, FA 135016
(Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods
or services where the respondent used the complainant’s mark without
authorization to attract Internet users to its website, which offered both the
complainant’s products and those of the complainant’s competitors); Nat’l Collegiate Athletic Ass’n v. Halpern,
D2000-0700 (WIPO Dec. 10, 2000) (finding that domain names used to sell the
complainant’s goods without the complainant’s authority, as well as others’
goods, is not bona fide use).
Nothing in the record, including the WHOIS registration
information, indicates that Respondent is commonly known by 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); 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 has not shown rights in the mark and domain name.
The Panel finds that Complainant
satisfied Policy ¶ 4(a)(ii).
Respondent is using the <deltaarlines.com>, <detaairlines.com>,
and <deltaailines.com> domain names to refer Internet traffic to
Complainant as well as Complainant’s competitors. The Panel finds that appropriating Complainant’s mark in
confusingly similar domain names to cause unsuspecting Internet users who seek
Complainant to believe that Complainant is leading them to Complainant’s
services and to Complainant’s competitors’ services is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(iii). See Gen. Media
Commc’ns, Inc. v. Vine Ent., FA 96554 (Nat. Arb. Forum Mar. 26, 2001)
(finding bad faith where a competitor of the complainant registered and used a
domain name confusingly similar to the complainant’s PENTHOUSE mark to host a
pornographic web site); S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb.
Forum July 18, 2000) (finding the respondent acted in bad faith by attracting
Internet users to a website that competes with the complainant’s business).
The Panel infers that Respondent is acquiring click-through fees through the associated websites. The Panel finds that appropriating Complainant’s mark to generate commercial gain is evidence of bad faith pursuant to 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.’”); 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).
The Panel finds that Complainant
satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <deltaarlines.com>, <detaairlines.com>, and <deltaailines.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: December 27, 2005.
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