Delta Corporate Identity, Inc. and Delta Air Lines, Inc. v. Cayman Trademark Trust c/o Domain Administrator c/o Generic Search Terms
Claim Number: FA0601000621139
Complainant’s are Delta Corporate Identity, Inc. and Delta Air Lines, Inc. (“Complainant”), represented by Ryan M. Kaatz, of Ladas & Parry, Digital Brands Practice, 224 South Michigan Avenue, Chicago, IL 60604. Respondent is Cayman Trademark Trust c/o Domain Administrator c/o Generic Search Terms (“Respondent”), PO Box 533 WB, West Bay, Grand Caym GT, KY.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <deltaairlineticket.com>, registered with Bulkregister, Llc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 6, 2006; the National Arbitration Forum received a hard copy of the Complaint on January 9, 2006.
On January 9, 2006, Bulkregister, Llc. confirmed by e-mail to the National Arbitration Forum that the <deltaairlineticket.com> domain name is registered with Bulkregister, Llc. and that Respondent is the current registrant of the name. Bulkregister, Llc. has verified that Respondent is bound by the Bulkregister, Llc. 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 12, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 1, 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@deltaairlineticket.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 7, 2006, pursuant to Complainant's request that this dispute should be decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole 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:
Complainant is the world’s second-largest airline in terms of passengers carried, operating under such names as Delta, Delta Air Lines, Delta Connection, and Delta SkyTeam.
Complainant has registered trademarks throughout the world incorporating the name DELTA, and has registered its DELTA mark with the United States Patent and Trademark Office (“USPTO”) from as early as 1957.
Respondent registered the <deltaairlineticket.com> domain name on February 25, 2000.
Complainant has not authorized, licensed or consented to Respondent’s use of the DELTA mark in a web site.
Respondent is using the disputed domain name to divert Internet users to a website that features links to other websites offering for sale airline tickets, as well as gambling and dating services.
Respondent’s <deltaairlineticket.com> domain name is confusingly similar to Complainant’s DELTA mark.
Respondent does not have any rights or legitimate interests in the domain name <deltaairlineticket.com>.
Respondent registered and uses the <deltaairlineticket.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant’s registration of the DELTA mark with the USPTO establishes its rights in the 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.” See also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; rather, it is sufficient that the complainant can demonstrate registration of a mark in some jurisdiction).
Respondent’s <deltaairlineticket.com> domain name incorporates Complainant’s DELTA mark along with generic terms (“airline” and “ticket”). Because Respondent incorporates Complainant’s DELTA mark in the disputed domain name in its entirety, it is confusingly similar to Complainant’s mark. Adding the phrase “airline ticket” to Complainant’s mark does not negate the confusingly similar character of Respondent’s <deltaairlineticket.com> domain name pursuant to Policy ¶ 4(a)(i), especially as the phrase “airline ticket” is relevant to Complainant’s industry. See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Brambles Indus. Ltd. v. Geelong Car Co. Pty. Ltd., D2000-1153 (WIPO Oct. 17, 2000) (finding that the domain name <bramblesequipment.com> is confusingly similar to a complainant’s mark because the combination of the two words "brambles" and "equipment" in the domain name implies that there is an association between the mark and the complainant’s business).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have rights or legitimate interests in the <deltaairlineticket.com> domain name. Under Policy ¶ 4(a)(ii), when a complainant has made a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have such rights or legitimate interests. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000): “Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.” See also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004): “Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name.”
Complainant further alleges, and Respondent does not deny, that Respondent is using the <deltaairlineticket.com> domain name, which is confusingly similar to Complainant’s DELTA mark, to divert Internet users to a website featuring links to other websites offering for sale both airline tickets and services unrelated to Complainant’s business. Respondent presumably receives click-through fees in exchange for diverting Internet users to these sites. Respondent’s use of the disputed domain name in this manner 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 Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003): “Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).” See also WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that a respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to a complainant’s mark, websites from which 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).
Complainant also asserts, without contradiction from Respondent, that Complainant has not authorized Respondent’s use of the DELTA mark in a domain name. Moreover, nothing in the WHOIS information of record in this proceeding indicates that Respondent is commonly known as <deltaairlineticket.com>, nor is there any other evidence of record suggesting that Respondent is commonly known by the <deltaairlineticket.com> domain name. The Panel therefore concludes that Respondent has not established rights or legitimate interests in the <deltaairlineticket.com> name pursuant to Policy ¶ 4(c)(ii). See 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 there to use the trademarked name); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001).
For all of these reasons, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant charges that Respondent is using the <deltaairlineticket.com> domain name to direct Internet users to websites that offer services from Complainant’s competitors as well as services that are unrelated to Complainant’s industry. Respondent does not deny these charges. The Panel therefore accepts the allegations as true. The panel also infers from the facts alleged, in light of Respondent’s silence in the face of those allegations, that Respondent receives payment in return for directing Internet users to these websites. The panel further infers that Respondent benefits financially from the likelihood of confusion between the <deltaairlineticket.com> domain name and Complainant’s DELTA mark. Such use constitutes bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that a respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) where the respondent was using a domain name confusingly similar to a competing mark to attract Internet users to its commercial website); see also Am. Online, Inc. v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where a respondent registered and used a domain name confusingly similar to a complainant’s mark to attract users to a website sponsored by the respondent).
Moreover, the evidence in this proceeding shows that
Respondent registered the domain name in question with actual or constructive
knowledge of Complainant’s rights in the DELTA mark by virtue of Complainant’s
prior registration of that mark with the United States Patent and Trademark
Office. Registration of a confusingly
similar domain name despite such actual or constructive knowledge is, without
more, evidence of bad faith registration and use of the domain name pursuant to
Policy ¶ 4(a)(iii). See Digi
Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002); see also Orange Glo Int’l v. Blume,
FA 118313 (Nat. Arb. Forum Oct. 4, 2002).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be demonstrated under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby,
GRANTED.
Accordingly, it is Ordered that the <deltaairlineticket.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: February 21, 2006
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