national arbitration forum

 

DECISION

 

Allegiant Air v. Domains Ventures

Claim Number:  FA0605000712049

 

PARTIES

Complainant is Allegiant Air (“Complainant”), represented by Kyle T. Peterson, of Patterson, Thuente, Skaar & Christensen, P.A., 4800 IDS Center, 80 South 8th Street, Minneapolis, MN 55427.  Respondent is Domains Ventures (“Respondent”), 136 Xiaoxue Road, Xiamen, Fujian 361001, CN.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <allegiantairways.com>, registered with Moniker Online Services, Inc.

 

PANEL

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.

 

Judge Ralph Yachnin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on May 22, 2006; the National Arbitration Forum received a hard copy of the Complaint on May 22, 2006.

 

On May 23, 2006, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <allegiantairways.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name.  Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 May 25, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 14, 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@allegiantairways.com by e-mail.

 

Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.

 

On June 20, 2006 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.      Respondent’s <allegiantairways.com> domain name is confusingly similar to Complainant’s ALLEGIANT AIR mark.

 

2.      Respondent does not have any rights or legitimate interests in the <allegiantairways.com> domain name.

 

3.      Respondent registered and used the <allegiantairways.com> domain name in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Allegiant Air, has provided airline transportation services since 1997, and is authorized to fly scheduled and charter airline operations throughout the United States.  Complainant offers its airline services under the ALLEGIANT AIR mark, which Complainant registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,444,756 issued April 17, 2001).  

 

Respondent, Domains Ventures, registered the <allegiantairways.com> domain name on January 20, 2004.  Respondent’s disputed domain name resolves to a website that provides links to third party websites offering airline travel services unrelated to Complainant’s airline transportation business. 

 

DISCUSSION

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.

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant’s trademark registration for the ALLEGIANT AIR mark with the USPTO establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).  See AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (“Complainant has submitted evidence of its registration of the AOL mark with the USPTO.  The Panel finds that such evidence establishes Complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Ameridream, Inc. v. Russell, FA 677782 (Nat. Arb. Forum May 24, 2006) (holding that the complainant’s registration of the AMERIDREAM mark with the USPTO, the complainant had established rights in the mark pursuant to Policy ¶ 4(a)(i)).  

 

Respondent’s <allegiantairways.com> domain name is confusingly similar to Complainant’s ALLEGIANT AIR mark pursuant to Policy ¶ 4(a)(i), as Respondent’s domain name consists of Complainant’s mark with the additions of the descriptive term “ways,” and the generic top-level domain “.com.”  The addition of the term “ways” to Complainant’s mark does not avoid the creation of confusing similarity because the term describes Complainant’s airline transportation services.  See Am. W. Airlines v. domainchronicle, FA 222038 (Nat. Arb. Forum Feb. 11, 2004) (finding that the respondent’s <americawestairways.com> was confusingly similar to the complainant’s AMERICA WEST AIRLINES mark because the respondent’s domain name still described the complainant and its specific air travel services); see also The Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark).  Moreover, the addition of the generic top-level domain name is irrelevant in evaluating confusing similarity per Policy ¶ 4(a)(i).  See Western Union Holdings, Inc. v. Topiwala, D2005-0945 (WIPO Oct. 20, 2005) (finding <wuib.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name WUIB is part of the Internet address and does not add source-identifying significance); see also Treeforms, Inc. v. Cayne Indus. Sales, Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that the respondent’s <treeforms.com> domain name is identical to the complainant’s TREEFORMS mark).   

 

The Panel finds that Policy ¶ 4(a)(i) has been satisfied. 

 

Rights or Legitimate Interests

 

Pursuant to Policy ¶ 4(a)(ii), Complainant must initially establish that Respondent lacks rights and legitimate interests with respect to the disputed domain name.  However, once Complainant demonstrates a prima facie case, the burden then shifts, and Respondent must establish that it possesses rights or legitimate interests in the disputed domain name in accord with Policy ¶ 4(a)(ii).  See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent.  In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the 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 has established a prima facie case and will evaluate the evidence on record to determine whether Respondent has rights or legitimate interests in connection with the <allegiantairways.com> domain name under Policy ¶ 4(c). 

 

The Panel finds that Respondent is using the <allegiantairways.com> domain name to operate a website featuring third party links to Complainant’s competitors.  The Panel finds that such use does not constitute either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See 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).”); see also 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).   

 

The evidence on record does not suggest that Respondent is commonly known by the <allegiantairways.com> domain name under Policy ¶ 4(c)(ii).  According to the WHOIS information for the <allegiantairways.com> domain name, Respondent is known as “Domains Ventures.”  Furthermore, there is nothing in the evidence on record indicating that Respondent is a licensee of Complainant, or an authorized user of Complainant’s ALLEGIANT AIR mark.  Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under 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). 

 

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied. 

 

Registration and Use in Bad Faith

 

Respondent is using the <allegiantairways.com> domain name to operate a website featuring links to third party websites offering airline ticket services unrelated to Complainant’s airline transportation business.  Therefore, the Panel finds that Respondent is taking advantage of the likelihood of confusion between Respondent’s <allegiantairways.com> domain name and Complainant’s ALLEGIANT AIR mark and attempting to capitalize on the goodwill established by Complainant in the mark.  The Panel finds that such use constitutes bad faith registration and use under Policy ¶ 4(b)(iv).  See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites.  Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”); see also State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where the respondent registered the domain name <bigtex.net> to infringe on the complainant’s goodwill and attract Internet users to the respondent’s website).     

 

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied. 

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <allegiantairways.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

 

Dated:  June 29, 2006

 

 

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