Delta Corporate Identity, Inc. and Delta Air Lines, Inc. v. DREF d/b/a blogik (WEBSITES FOR SALE)
Claim Number: FA0512000615295
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 DREF d/b/a blogik (WEBSITES FOR SALE) (“Respondent”), 7 Seaside Drive, Nassau 042523, Panama.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <deltaairlinse.com> and <edltaairlines.com>, registered with Affordable Computer Solutions, Inc. d/b/a Www.Afford.
The undersigned certifies that she has 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 December 22, 2005; the National Arbitration Forum received a hard copy of the Complaint December 27, 2005.
On December 30, 2005, Affordable Computer Solutions, Inc. d/b/a Www.Afford confirmed by e-mail to the National Arbitration Forum that the <deltaairlinse.com> and <edltaairlines.com> domain names are registered with Affordable Computer Solutions, Inc. d/b/a Www.Afford and that Respondent is the current registrant of the names. Affordable Computer Solutions, Inc. d/b/a Www.Afford verified that Respondent is bound by the Affordable Computer Solutions, Inc. d/b/a Www.Afford 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 January 3, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 23, 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@deltaairlinse.com and postmaster@edltaairlines.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 27, 2006, 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, <deltaairlinse.com> and <edltaairlines.com>, are confusingly similar to Complainant’s DELTA and DELTA AIR LINES marks.
2. Respondent has no rights to or legitimate interests in the <deltaairlinse.com> and <edltaairlines.com> domain names.
3. Respondent registered and used the <deltaairlinse.com> and <edltaairlines.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is a worldwide leader in air transportation services for people, property and mail. Complainant was founded in 1928 and serves about 217 domestic cities in forty-six states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands. In association with its domestic and international partners, Complainant’s routes cover 490 destinations in eighty-five countries.
Complainant owns numerous registrations with the United States Patent and Trademark Office (“USTPO”) for its DELTA family of marks, including its DELTA (i.e. Reg. No. 654,915 issued November 19, 1957) and DELTA AIR LINES (i.e. Reg. No. 970,418 issued October 9, 1973) marks.
Respondent registered the <deltaairlinse.com> and <edltaairlines.com> domain names January 29, 2005. The disputed domain names resolve to generic search engine websites that display links to several of Complainant’s competitors in the airline services business.
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 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 provided extrinsic evidence in this proceeding to establish that it holds registrations of the DELTA and DELTA AIR LINES marks from the USPTO. The Panel finds that Complainant, therefore, established rights in the marks under 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.”).
Complainant argues that the <deltaairlinse.com> and
<edltaairlines.com> domain names are confusingly similar to
Complainant’s DELTA and DELTA AIR LINES marks.
The <deltaairlinse.com>
domain name incorporates the DELTA mark in its entirety and differs from
the DELTA AIR LINES mark only with the transposition of the letters “s” and
“e.” The <edltaairlines.com> simply
transposes the “e” and “d” in DELTA.
The transposition of letters and addition of common terms does not
create domain names that are distinct from Complainant’s marks. Thus, the Panel finds that the domain names
are confusingly similar to Complainant’s marks pursuant to Policy ¶
4(a)(i). See Pier 1 Imps., Inc. v. Success Work, D2001-0419 (WIPO May 16, 2001) (finding that
the domain name <peir1.com> is confusingly similar to the complainant's
PIER 1 mark); see also 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 Space Imaging LLC v. Brownell, AF-0298
(eResolution Sept. 22, 2000) (finding confusing similarity where the
respondent’s domain name combines the complainant’s mark with a generic term
that has an obvious relationship to the complainant’s business).
Therefore, the Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant established that it has rights to and legitimate interests in the marks that are contained in the disputed domain names. Complainant’s initial burden under Policy ¶4(a)(ii) is to prove rights and to show that Respondent does not have such rights or legitimate interests in the disputed domain names. 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 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 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 nothing in the record, including the WHOIS information, suggests that Respondent is commonly known by the <deltaairlinse.com> and <edltaairlines.com> domain names. Respondent has not come forward with any evidence rebutting Complainant’s contentions. Therefore, the Panel concludes that Respondent failed to establish that it is commonly known by the <deltaairlinse.com> and <edltaairlines.com> domain names pursuant to Policy ¶ 4(c)(ii). See 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); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").
Respondent is using the <deltaairlinse.com> and
<edltaairlines.com> domain names to garner profit from
click-through fees. The domain names
resolve to a generic search engine website that displays links to various
third-party websites, including several that compete with Complainant. Respondent is doing so, presumably, for the
purpose of earning commissions for diverting Internet users to these
third-party businesses. The Panel does
not find a bona fide offering of goods or services under Policy ¶
4(c)(i) where Respondent is using Complainant’s DELTA mark and confusingly
similar versions of Complainant’s DELTA AIR LINES mark to operate a commercial
website for Respondent’s own benefit.
Furthermore, such use for Respondent’s commercial gain does not
constitute a legitimate noncommercial or fair use of the domain names under
Policy ¶ 4(c)(iii). See Am. Online, Inc. v. Advanced Membership Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26, 2003) (“Respondent's
registration and use of the <gayaol.com> domain name with the intent to
divert Internet users to Respondent's website suggests that Respondent has no
rights to or legitimate interests in the disputed domain name pursuant to
Policy Paragraph 4(a)(ii).”); see also WeddingChannel.com Inc.
v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the
respondent’s use of the disputed domain name to
redirect Internet users to websites unrelated to the complainant’s mark,
websites where the respondent presumably receives a referral fee for each
misdirected Internet user, was not a bona fide offering of goods or
services as contemplated by the Policy).
Consequently, the Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent acted in bad faith. Respondent’s use of the <deltaairlinse.com> and <edltaairlines.com> domain names to divert Internet users searching for Complainant’s airline services to Respondent’s directory website demonstrates Respondent’s intent to attract Internet users to its website by creating confusion with Complainant’s marks. The registration and use of domain names containing Complainant’s DELTA mark or a confusingly similar version of Complainant’s DELTA AIR LINES mark to divert Internet users for Respondent’s commercial gain is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also 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.’”).
Thus, the Panel finds that Complainant 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 <deltaairlinse.com> and <edltaairlines.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: February 9, 2006.
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