Frontier Airlines, Inc. v. Webmaster
Claim Number: FA0603000667761
Complainant is Frontier Airlines, Inc. (“Complainant”), represented by Donald Degnan, of Holland & Hart LLP, 1800 Broadway, Suite 300, Boulder, CO 80302. Respondent is Webmaster (“Respondent”), #708 charming opulence, Daemyung-5 Dong 145 Bun-Ji, Daemyung-5 Dong Namgu, Daegu, Korea 70581.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <frontierairline.com>, registered with Cydentity, Inc. d/b/a Cypack.com.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 24, 2006; the National Arbitration Forum received a hard copy of the Complaint on April 13, 2006.
On April 16, 2006, Cydentity, Inc. d/b/a Cypack.com confirmed by e-mail to the National Arbitration Forum that the <frontierairline.com> domain name is registered with Cydentity, Inc. d/b/a Cypack.com and that Respondent is the current registrant of the name. Cydentity, Inc. d/b/a Cypack.com has verified that Respondent is bound by the Cydentity, Inc. d/b/a Cypack.com 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 April 17, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 8, 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@frontierairline.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 15, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a leading United States airline company serving millions of corporate and leisure travelers since its inception in 1994.
Complainant has spent millions of dollars on national advertising and promotional material for the FRONTIER AIRLINES brand.
Owing to this substantial investment in the mark, together with its widespread use in commerce, Complainant has acquired common law rights in it.
Complainant has filed for registration of the same mark with the United States Patent and trademark Office (“USPTO”), as of April 13, 2005.
Respondent has never been commonly known by the contested domain name.
Respondent has not been authorized by Complainant to use its mark in any manner.
Respondent registered the <frontierairline.com> domain name on October 30, 1999.
Respondent’s domain name resolves to a website featuring links to various competing and non-competing commercial websites.
Respondent’s <frontierairline.com> domain name is confusingly similar to Complainant’s FRONTIER AIRLINES mark.
Respondent does not have any rights or legitimate interests in the <frontierairline.com> domain name.
Respondent registered and used the <frontierairline.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 mark in which Complainant has rights; and
(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 asserts common law rights in the FRONTIER AIRLINES mark through its extensive use in commerce, with accompanying promotion, since Complainant’s inception in 1994. In furtherance of these contentions, Complainant has submitted evidence of significant advertising and promotional expenditures on national advertising campaigns, including in airline industry publications. In light of such evidence, the Panel finds that, pursuant to Policy ¶ 4(a)(i), Complainant has established common law rights in the FRONTIER AIRLINES mark dating from 1994. See, for example, Nat’l Assoc. of Prof. Baseball Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003), decided on facts similar to those presented here.
Complainant contends, and Respondent does not deny, that Respondent’s domain name <frontierairline.com> is confusingly similar to Complainant’s mark. Respondent’s domain name retains the dominant features of Complainant’s FRONTIER AIRLINES mark but omits the letter “s.” The Panel finds that such a variation fails to distinguish Respondent’s domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from a 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); see also Victoria's Secret v. Internet Inv. Firm Trust, FA 94344 (Nat. Arb. Forum May 9, 2000) (finding the domain name <victoriasecret.com> to be confusingly similar to a complainant’s VICTORIA’S SECRET trademark).
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 <frontierairline.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to show rights or legitimate interests. Because of Respondent’s failure to respond to the Complaint, the Panel is entitled to and does infer that Respondent has no rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where a complainant has asserted that a respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under appropriate circumstances, as here, the assertion by a complainant that a respondent has no rights or legitimate interests in a contested domain name is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest exists); likewise see 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. It also allows the Panel to
accept all reasonable allegations set forth…as true.
However, the Panel chooses to analyze whether the evidence
of record in this proceeding would nonetheless support a finding of rights or
legitimate interests in Respondent.
In this connection, Complainant contends that Respondent’s
domain name resolves to a website, which features links to various competing
commercial websites from which Respondent presumably receives referral
fees. Respondent does not deny this
assertion. The Panel thus concludes
that Respondent’s use of the infringing domain name for Respondent’s commercial
gain is neither a bona fide offering of goods or services pursuant to
Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy
¶ 4(c)(iii). See 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 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); see also Golden Bear Int’l, Inc. v.
Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003)
Respondent's use of a domain name confusingly similar to
Complainant’s mark to divert Internet users to websites unrelated to
Complainant's business does not represent a bona fide offering of goods or
services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii).
Further, Complainant contends that Respondent is neither commonly known by the disputed domain name nor authorized to use Complainant’s mark. Respondent does not deny this contention. There is therefore no evidence that Respondent is commonly known by the <frontierairline.com> domain name for purposes of establishing rights or legitimate interests under 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 to use the trademarked name); to the same effect, see Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000).
For these reasons, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent’s use of the <frontierairline.com>
domain name for purposes of operating a website that features links to various
competing commercial websites through which Respondent presumably receives
referral fees is evidence of bad faith.
In the absence of evidence to the contrary, the Panel concludes that
such use of Complainant’s mark is likely to cause confusion as to whether Complainant
sponsors or is affiliated with Respondent’s website. Respondent’s evident intent to deceive Internet users for
commercial gain demonstrates bad faith registration and use of the contested
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 a domain name in bad faith
pursuant to Policy ¶ 4(b)(iv) where the respondent used the confusingly similar
domain name to attract Internet users to its commercial website); 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.’
At
base, this case presents an unvarnished instance of “typosquatting,” the
deliberate misspelling of a valuable mark of another in a domain name “as a
means of redirecting consumers against their will to another site” (Nat’l
Assoc. of Prof. Baseball Leagues, Inc. v. Zuccarini, supra) and is
inherently mired in bad faith.
The Panel thus finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <frontierairline.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: May 25, 2006
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