Air Transport Association of America, Inc., d/b/a Airlines for America v. liu xiaoliang
Claim Number: FA2208002007644
Complainant is Air Transport Association of America, Inc., d/b/a Airlines for America ("Complainant"), represented by Andrew J. Avsec of Crowell & Moring LLP, Illinois, USA. Respondent is liu xiaoliang ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ataspec.com>, registered with Name.com, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 9, 2022; the Forum received payment on August 9, 2022.
On August 9, 2022, Name.com, Inc. confirmed by email to the Forum that the <ataspec.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 11, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 31, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@ataspec.com. Also on August 11, 2022, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 6, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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
Complainant is a trade association for the aviation industry established in 1936. Since 1956 Complainant has developed and sold a series of industry standard technical publications that are used and relied upon globally. Complainant asserts common law trademark rights in ATA and ATA SPEC, which it has used in connection with its publications and other goods and services for many years. Complainant states that these marks are well known in the aviation industry, and provides several examples of references to the marks by various third-party news sources. One of the most prominent categories of specifications published by Complainant has been referred to as ATA SPEC 2000 since the late 1980s, and Complainant owns a United States trademark registration for SPEC 2000.
Respondent registered the disputed domain name <ataspec.com> in February 2020. The domain name is being used for a website entitled "ATA Spec" that offers unauthorized copies of Complainant's publications for sale. The website was taken down temporarily by a hosting service provider at Complainant's request, but the disputed domain name now redirects to a similar or identical site at the domain name <ataspec.org>. Complainant states that Respondent is not commonly known by the disputed domain name and is not authorized or licensed to use Complainant's marks.
Complainant contends on the above grounds that the disputed domain name <ataspec.com> is identical or confusingly similar to its ATA SPEC mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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."
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.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
To prevail under the Policy, Complainant must show that the disputed domain names are identical or confusingly similar to a trademark or service mark in which Complainant has rights. If the claim relies upon common law rights, Complainant must present evidence that the mark has acquired secondary meaning — i.e., that it has become a distinctive identifier associated with Complainant or its goods or services. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, supra, § 1.3.
Complainant asserts that it has common law trademark rights in ATA SPEC arising from its use of that term over a period of more than 60 years, and has provided evidence that the term is commonly used by third parties to refer to and identify the source of Complainant's publications. In the absence of any challenge by Respondent, the Panel considers the evidence provided by Complainant sufficient to demonstrate common law rights in the ATA SPEC mark for purposes of paragraph 4(a)(i) of the Policy.
The disputed domain name <ataspec.com> incorporates Complainant's ATA SPEC mark, omitting the space and appending the ".com" top-level domain. Such modifications are normally disregarded for purposes of assessing identicality under paragraph 4(a)(i) of the Policy. See, e.g., The Administrator of the Ermias J. Asghedom Estate v. Ari Armani / Ari Armani & Co., FA 1943671 (Forum June 4, 2021) (finding <nipseyhussle.com> identical to NIPSEY HUSSLE); Scientific Specialties Service, Inc. v. Marc Grebow / PrivacyProtect.org, FA 1896015 (Forum June 24, 2020) (finding <scispec.com> identical or confusingly similar to SCI SPEC). The Panel considers the disputed domain name to be identical to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and it is being used for a misleading website that appears to be intended to pass off as Complainant and that offers for sale unauthorized copies of Complainant's products. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Urban Sophistication Ltd. v. Zhi Wei Chen, FA 1997556 (Forum June 24, 2022) (finding lack of rights or interests in similar circumstances); Underwriters Laboratories Inc. v. Ji xiangpeng / jixiangpeng, HK-1300540 (ADNDRC Oct. 1, 2013) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name corresponding to Complainant's common law ATA SPEC mark and is using it for a misleading website that appears to be intended to pass off as Complainant and that offers for sale unauthorized copies of Complainant's products. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Urban Sophistication Ltd. v. Zhi Wei Chen, supra (finding bad faith in similar circumstances); Underwriters Laboratories Inc. v. Ji xiangpeng / jixiangpeng, supra (same). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ataspec.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: September 7, 2022
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