Delta Corporate Identity, Inc. and Delta Air Lines, Inc. v. J J Domains a/k/a ErrorMan Inc.
Claim Number: FA0512000608638
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 J J Domains a/k/a ErrorMan Inc. (“Respondent”), 1089 Sleepy Hollow Loop, Grants Pass, OR 97527.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <deltairlines.com>, registered with Gandi.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 12, 2005; the National Arbitration Forum received a hard copy of the Complaint on December 12, 2005.
On December 13, 2005, Gandi confirmed by e-mail to the National Arbitration Forum that the <deltairlines.com> domain name is registered with Gandi and that Respondent is the current registrant of the name. Gandi has verified that Respondent is bound by the Gandi 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 December 15, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 4, 2006 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@deltairlines.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 10, 2006 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <deltairlines.com> domain name is confusingly similar to Complainant’s DELTA AIR LINES mark.
2. Respondent does not have any rights or legitimate interests in the <deltairlines.com> domain name.
3. Respondent registered and used the <deltairlines.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is a worldwide leader in air transportation services for persons, property and mail. Complainant was founded in 1928 and currently serves 217 domestic cities in 46 states, including Puerto Rico and the U.S. Virgin Islands. Complainant’s services include those of its affiliates, extending 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.
Complainant is the owner of the DELTA AIR LINES mark, among others, through registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 523,611, issued April 4, 1950). Most of complainant’s marks cover travel-related services, including but not limited to air travel and the related services provided by an airline.
Respondent registered the <deltairlines.com> domain name on December 4, 2000. Respondent is using the disputed domain name for various commercial purposes.
Respondent has been involved in prior administrative domain proceedings where previous panels have found in favor of the trademark holder and ordered that the domain name be transferred from Respondent to the trademark holder. See Gorstew Ltd. v. JJ Domains, FA 095499 (Nat. Arb. Forum Oct. 24, 2000); see also Amazon.com, Inc. v. JJ Domains, FA 514939 (Nat. Arb. Forum Sept. 2, 2005).
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 established rights in the DELTA AIR LINES mark through registration with the USPTO. 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.”); see also 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.").
Complainant asserts that the <deltairlines.com>
domain name is confusingly similar to Complainant’s DELTA AIR LINES mark
pursuant to Policy ¶ 4(a)(i) because the domain name incorporates Complainant’s
entire mark with the omission of a space between each word and the omission of
the letter “a.” The Panel finds that
the omission of spaces and the letter “a” does not negate the confusing
similarity between Respondent’s domain name and Complainant’s mark pursuant to
Policy ¶ 4(a)(i). See Hannover
Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001)
(finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are
impermissible in domain names and a generic top-level domain such as ‘.com’ or
‘.net’ is required in domain names”); see also Reuters Ltd. v. Global Net
2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name
which differs by only one letter from a trademark has a greater tendency to be
confusingly similar to the trademark where the trademark is highly
distinctive).
Furthermore, the addition of the generic top-level domain “.com” does not negate the confusing similarity of Respondent’s domain name to Complainant’s DELTA AIR LINES mark pursuant to Policy ¶ 4(a)(i). See 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); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent does not have rights or
legitimate interests in the <deltairlines.com> domain name. When a Complainant establishes a prima
facie case pursuant to Policy ¶ 4(a)(ii), the burden shifts to the
respondent to prove that it has rights or legitimate interests. Due to Respondent’s failure to respond to
the Complaint, the Panel infers that Respondent does not have rights or
legitimate interests in the disputed domain name. See Parfums
Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that
by not submitting a response, the respondent has failed to invoke any
circumstance which could demonstrate any rights or legitimate interests in the
domain name); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”).
Additionally, Respondent has not offered any evidence and there is no proof in the record suggesting that Respondent is commonly known by the <deltairlines.com> domain name. Thus, the Panel concludes that Respondent has not established rights or legitimate interests in the disputed domain name 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 Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Moreover, Respondent is using the <deltairlines.com>
domain name to garner click-through fees through Complainant’s online affiliate
program. Respondent’s commercial use of
a domain name confusingly similar to Complainant’s mark to benefit commercially
from Complainant’s affiliate program fails to demonstrate a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial
use or fair use of the domain name under Policy ¶ 4(c)(iii). See 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.”); see also Medline,
Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (finding no rights or
legitimate interests where the respondent merely redirected the
<wwwmedline.com> domain name to the complainant’s own website at
<medline.com>).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s registration and use of a typosquatted version of Complainant’s DELTA AIR LINES mark establishes Respondent’s bad faith registration and use of the <deltairlines.com> domain name. See 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.”); 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).”).
Complainant further contends that Respondent registered and
used the <deltairlines.com>
domain name to divert internet traffic to Respondent’s website in order to
receive click through fees from Complainant’s online affiliate program. Based on Respondent’s commercial use of the
disputed domain name, the Panel finds that Respondent registered and used the <deltairlines.com>
domain name in bad faith under Policy ¶ 4(b)(iv) because Respondent has
intentionally attempted to attract Internet users for its own commercial gain
by creating a likelihood of confusion with Complainant’s mark as to the source,
sponsorship, affiliation or endorsement of Respondent’s website. See 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.”); see also Deluxe Corp. v. Dallas Internet, FA 105216 (Nat. Arb. Forum Apr. 10, 2002) (finding the
respondent registered and used the <deluxeform.com> domain name in bad
faith pursuant to Policy ¶ 4(b)(iv) by redirecting its users to the
complainant’s <deluxeforms.com> domain name, thus receiving a commission
from the complainant through its affiliate program).
The Panel finds that Policy ¶ 4(b)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <deltairlines.com> domain name be transferred from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: January 19, 2006
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum