Delta Corporate Identity, Inc. and Delta Air
Lines, Inc. v Stanley Vartanian d/b/a MIG Travel
Claim Number: FA0511000603352
PARTIES
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 Stanley Vartanian d/b/a MIG Travel, (“Respondent”),
950 Cabrillo St., San Francisco, CA 94118.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <deltaairline.us>,
registered with Go Daddy Software, Inc.
PANEL
The undersigned certifies that he or she has acted independently and
impartially and to the best of his or her knowledge has no known conflict in
serving as Panelist in this proceeding.
James A. Crary as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on November 29, 2005; the Forum received a hard
copy of the Complaint on December 1, 2005.
On November 30, 2005, Go Daddy Software, Inc. confirmed by e-mail to
the Forum that the domain name <deltaairline.us>
is registered with Go Daddy Software, Inc. and that Respondent is the current
registrant of the name. Go Daddy
Software, Inc. has verified that Respondent is bound by the Go Daddy Software,
Inc. registration agreement and has thereby agreed to resolve domain-name
disputes brought by third parties in accordance with the U. S. Department of
Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On December 2, 2005, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of December 22, 2005 by which 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@deltaairline.us by
e-mail.
Having received no Response from Respondent, using the same contact
details and methods as were used for the Commencement Notification, the Forum
transmitted to the parties a Notification of Respondent Default.
On December 29, 2005, pursuant to Complainant’s request to have the
dispute decided by a single-member Panel, the Forum appointed James A. Crary 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 name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant makes the following assertions:
1. Respondent’s <deltaairline.us> domain name is confusingly similar to Complainant’s DELTA AIRLINES mark.
2. Respondent does not have any rights or legitimate interests in the <deltaairline.us> domain name.
3. Respondent registered and used the <deltaairline.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainants, Delta Corporate Identity and Delta
Air Lines, Inc., come before the Panel, collectively, as one Complainant. Complainant is known as an industry leader
in transportation services for persons, property, and mail. Complainant’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.
Complainant first registered the DELTA AIR
LINES mark on April 4, 1950 with the U.S. Patent and Trademark Office (“USPTO”)
(Reg. No. 523,611).
Respondent, Stanley Vartanian d/b/a MIG
Travel, registered the <deltaairline.us>
domain name on November 14, 2004. The
website associated with the <deltaairline.us> domain
name offers airline tickets for sale.
It also displays the DELTA mark in the website’s banner and offers links
to Complainant’s competitors.
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 the 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 the Respondent is identical or confusingly
similar to a trademark or service mark in which the Complainant has rights; and
(2) the 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.
Complainant offers its USPTO registration for
the DELTA AIRLINES mark to establish rights in the mark. The Panel finds that Complainant has
established rights in the DELTA AIRLINES mark pursuant to Policy ¶ 4(a)(i). See 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.”); 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 Panel finds that the <deltaairline.us> domain name is confusingly similar
to Complainant’s DELTA AIRLINES mark because the only difference is the
elimination of a space between words and the letter “s,” which does not
significantly distinguish the domain name 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); Universal
City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000)
(finding that deleting the letter “s” from the complainant’s UNIVERSAL STUDIOS
STORE mark did not change the overall impression of the mark and thus made the
disputed domain name confusingly similar to it).
The Panel finds that Complainant has
established Policy ¶ 4(a)(i).
Respondent is appropriating Complainant’s
mark to sell airline tickets and refer Internet traffic to competitors. The Panel finds that appropriating another’s
mark to sell services and lead Internet traffic to competitors is neither a bona
fide offering of a good or service pursuant to Policy ¶ 4(c)(ii) nor a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iv). See G.D. Searle & Co.
v. Pelham, FA 117911 (Nat. Arb. Forum Sept. 19, 2002) (finding that because
the respondent is using the infringing domain name to sell prescription drugs,
the panel could infer that the respondent is using the complainant’s mark to
attract Internet users to its website for commercial benefit); 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).
The Panel finds that there is nothing in the
record, including a trademark registration or WHOIS registration information,
which demonstrates that Respondent is commonly known by the disputed domain
name pursuant to Policy ¶ 4(c)(i) or ¶ 4(c)(iii). 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 UDRP ¶ 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).
The Panel finds that Complainant has
established Policy ¶ 4(a)(ii).
Registration or Use in Bad Faith
Respondent has registered and used a domain
name that is confusingly similar to Complainant’s mark for commercial
gain. The Panel finds that this is
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum
Aug. 21, 2000) (finding bad faith where the respondent directed Internet users
seeking the complainant’s site to its own website for commercial gain); Am. Online, Inc. v. Tencent Commc’ns Corp.,
FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where the
respondent registered and used a domain name confusingly similar to the
complainant’s mark to attract users to a website sponsored by the respondent).
The website associated with Complainant’s
domain name refers traffic to Complainant’s competitors, which is evidence of
bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Travant Solutions, Inc. v. Cole, FA
203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent registered and used the
domain name in bad faith, pursuant to [UDRP] ¶ 4(b)(iii), because it is
operating on behalf of a competitor of Complainant . . .”); Disney Enters., Inc. v. Noel, FA 198805 (Nat.
Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly
similar to Complainant's mark to divert Internet users to a competitor's
website. It is a reasonable inference that Respondent's purpose of registration
and use was to either disrupt or create confusion for Complainant's business in
bad faith pursuant to [UDRP] ¶¶ 4(b)(iii) [and] (iv).”).
The Panel finds that 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 <deltaairline.us> domain name be TRANSFERRED
from Respondent to Complainant.
James A. Crary, Panelist
Dated: January 12, 2006
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