Allegiant Air v. Digi Real Estate Foundation
Claim Number: FA0605000712332
Complainant is Allegiant Air (“Complainant”), represented by Kyle T. Peterson, 4800 IDS Center, 80 South 8th Street, Minneapolis, MN 55427. Respondent is Digi Real Estate Foundation (“Respondent”), PO Box 7-5324, Panama City N7 8DJ, Panama.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <allegianttravel.com>, registered with Nictrade Internet Identity Provider Ab.
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.
Bruce E. Meyerson as Panelist.
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 24, 2006, Nictrade Internet Identity Provider Ab confirmed by e-mail to the National Arbitration Forum that the <allegianttravel.com> domain name is registered with Nictrade Internet Identity Provider Ab and that Respondent is the current registrant of the name. Nictrade Internet Identity Provider Ab has verified that Respondent is bound by the Nictrade Internet Identity Provider Ab 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 26, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 15, 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@allegianttravel.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 Bruce E. Meyerson 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 <allegianttravel.com> domain name is confusingly similar to Complainant’s ALLEGIANT AIR mark.
2. Respondent does not have any rights or legitimate interests in the <allegianttravel.com> domain name.
3. Respondent registered and used the <allegianttravel.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Allegiant Air, LLC, was founded in 1997 and is a certified by the United States Department of Transportation as a “Scheduled Air Carrier” with authority to fly scheduled and charter airline operations throughout the United States. Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the ALLEGIANT AIR mark (Reg. No. 2,444,756 issued April 17, 2001).
Respondent registered the <allegianttravel.com> domain name on October 1, 2005. Respondent is using the disputed domain name to redirect Internet users to Respondent’s commercial website that features links to third-party websites for competing airline transportation services.
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. 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 sufficiently proved rights in the ALLEGIANT
AIR mark based on Complainant’s registration of the mark with the USPTO. America
Online,
Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 2001) (finding that successful
trademark registration with the USPTO creates a presumption of rights in a
mark); see also Innomed Tech., 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.”).
Respondent’s
<allegianttravel.com> domain name is confusingly similar to
Complainant’s ALLEGIANT AIR mark because Respondent’s domain name incorporates the
dominant features of Complainant’s mark, omits the term “air” and replaces it
with the term “travel,” which describes 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 Wellness Int’l
Network, LTD v. Apostolics.com, FA 96189 (Nat. Arb. Forum Jan. 16, 2001)
(finding that the domain name <wellness-international.com> is confusingly
similar to the complainant’s WELLNESS INTERNATIONAL NETWORK); see also Am.
Eagle Outfitters, Inc. v. Admin, FA 473826 (Nat. Arb. Forum June 22, 2005)
(finding the <americaneaglestores.com> domain name to be confusingly
similar to the complainant’s AMERICAN EAGLE OUTFITTERS mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent does not have rights or legitimate interests in the <allegianttravel.com> domain name. Once Complainant establishes 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). Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent is using the <allegianttravel.com> domain name to
redirect Internet users to Respondent’s commercial website that features links
to competing third-party websites.
Respondent’s use of a domain name that is confusingly similar to
Complainant’s ALLEGIANT AIR mark to redirect Internet users interested in
Complainant’s goods and services to a website that offers similar goods and
services in competition with Complainant is not a use in connection with a bona
fide offering of goods or 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 Coryn Group,
Inc. v. Media Insight, FA 198959 (Nat.
Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain
names for a bona fide offering of goods or services nor a legitimate
noncommercial or fair use because the respondent used the names to divert
Internet users to a website that offered services that competed with those
offered by the complainant under its marks); see also Glaxo Group Ltd. v.
WWW Zban, FA 203164 (Nat. Arb. Forum Dec. 1, 2003) (finding that the
respondent was not using the domain name within the parameters of Policy ¶
4(c)(i) or (iii) because the respondent used the domain name to take advantage
of the complainant's mark by diverting Internet users to a competing commercial
site).
Moreover, Complainant asserts, without contradiction from Respondent, that Respondent is neither commonly known by the <allegianttravel.com> domain name nor authorized to use a domain name featuring Complainant’s mark. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) a respondent is not a licensee of a complainant; (2) complainant’s prior rights in the domain name precede that respondent’s domain name registration; (3) that respondent is not commonly known by the domain name in question); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interests where a respondent was not commonly known by the mark and never applied for a license or permission from a complainant to use the trademarked name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <allegianttravel.com> domain name to redirect Internet users to Respondent’s commercial website that features links to competing third-party websites. The Panel finds that such use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business); see also Puckett v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Moreover, the Panel infers that Respondent receives click-through fees for diverting Internet users to competing websites. Internet users accessing Respondent’s domain name may become confused as to Complainant’s affiliation with the disputed domain name. Therefore, Respondent’s use of the <allegianttravel.com> domain name amounts to bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant’s mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); 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).
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 <allegianttravel.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: June 28, 2006
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum