Delta Corporate Identity, Inc. and Delta Air Lines, Inc. v. NA The data in Bulkregister.com's WHOIS database is p c/o Dotsan c/o R.S. Potda
Claim Number: FA0601000617583
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 NA The data in Bulkregister.com's WHOIS database is p c/o Dotsan c/o R.S. Potda (“Respondent”), 35-37 Sunder Mahal, Mumbai, India 400021, IN.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <deltareservations.com>, registered with Enom, Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 3, 2006; the National Arbitration Forum received a hard copy of the Complaint on January 4, 2006.
On January 4, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <deltareservations.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 January 6, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 26, 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@deltareservations.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 1, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 <deltareservations.com> domain name is confusingly similar to Complainant’s DELTA mark.
2. Respondent does not have any rights or legitimate interests in the <deltareservations.com> domain name.
3. Respondent registered and used the <deltareservations.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Delta Air Lines, Inc., is the world’s second-largest airline in terms of passengers carried, covering 490 destinations in 85 countries, operating under such names as Delta, Delta Air Lines, Delta Shuttle, and Delta Airelite. Complainant has registered trademarks incorporating the name DELTA throughout the world. Complainant has registered its DELTA mark with the USPTO (Reg. No. 654,915, issued November 19, 1957) and the Indian Trade Marks Registry (Reg. No. 569051, issued March 9, 1992). India is allegedly Respondent’s country of domicile.
Respondent registered the <deltareservations.com> domain name on July 12, 2001. Respondent is using the disputed domain name to divert Internet users to a generic search-engine website, which features links to other websites offering airline tickets for sale, and also features pop-up windows promoting travel services and gambling.
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 mark, pursuant to Policy ¶ 4(a)(i), through registration of the mark with numerous authorities, including the USPTO and the Indian Trade Marks Registry. 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 Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the complainant has rights to the name when the mark is registered in a country even if the complainant has never traded in that country).
Respondent’s <deltareservations.com> domain name is confusingly similar to Complainant’s DELTA mark because Respondent’s domain name incorporates Complainant’s mark along with a generic term (“reservations”) that relates to Complainant’s business. The Panel finds that such minor alterations to Complainant’s registered mark do not negate the confusingly similar aspects of Respondent’s domain name pursuant to Policy ¶ 4(a)(i). See 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); see also Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent’s domain name <marriott-hotel.com> is confusingly similar to the complainant’s MARRIOTT mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <deltareservations.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See 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.”); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).
Respondent is using the <deltareservations.com> domain name to divert Internet users to a generic search-engine website that features links to other websites offering airline tickets for sale, presumably in exchange for a pay-per-click referral fee. Respondent’s use of a domain name that is confusingly similar to Complainant’s DELTA mark to redirect Internet uses to websites that offer products or services in competition with Complainant is not a use in connection with a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See 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 Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name). Furthermore, the fact that Respondent uses a confusingly similar domain name to redirect users to a website which then generates pop-up advertisements for other services is additional evidence that Respondent is not using the disputed domain name in a bona fide offering of goods and services. See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (holding that the respondent’s use of “confusingly similar derivatives of Complainant’s WELLS FARGO mark to divert Internet users to websites featuring pop-up advertisements” was not a bona fide offering of goods or services).
Respondent has neither offered evidence, nor is there any evidence on record, that Respondent is commonly known by the <deltareservations.com> domain name. Complainant asserts that Complainant has not authorized, licensed, or consented to Respondent’s use of the DELTA mark, and nothing in the WHOIS information indicates that Respondent is commonly known as DELTA. Thus, Respondent has not established rights or legitimate interests in the <deltareservations.com> name 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 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").
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <deltareservations.com> domain name, which is confusingly similar to Complainant’s DELTA mark, to redirect Internet users to a website that offers links to Complainant’s services and competitor’s services. Such use constitutes disruption and 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); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding that the respondent registered the domain name in question to disrupt the business of the complainant, a competitor of the respondent).
The Panel infers that Respondent receives click-through fees in exchange for diverting Internet users to competing websites. Because Respondent’s domain name is confusingly similar to Complainant’s DELTA mark, Internet users who access Respondent’s domain name may mistakenly assume that the resulting website is affiliated with Complainant. Thus, Respondent’s use of the <deltareservations.com> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See State Farm Mut. Auto. Ins. Co. v. Northway, FA 95464 (Nat. Arb. Forum Oct. 11, 2000) (finding that the respondent registered the domain name <statefarmnews.com> in bad faith because the respondent intended to use the complainant’s marks to attract the public to the web site without permission from the complainant); see also 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);see Amazon.com, Inc. v. Shafir, FA 196119 (Nat. Arb. Forum Nov. 10, 2003) (“As Respondent is using the domain name at issue in direct competition with Complainant, and giving the impression of being affiliated with or sponsored by Complainant, this circumstance qualifies as bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv).”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <deltareservations.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 15, 2006
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