NATIONAL ARBITRATION FORUM

DECISION

Flexjet, LLC v. Addi Lobster

Claim Number: FA2502002139427

PARTIES

Complainant is Flexjet, LLC ("Complainant"), represented by Matt Stanton of Flexjet, LLC, Ohio, USA. Respondent is Addi Lobster ("Respondent"), Kenya.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <flexjetaviation.com>, registered with HOSTINGER operations, UAB.

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.

The Honorable Neil Anthony Brown KC as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 10, 2025; Forum received payment on February 10, 2025.

On February 11, 2025, HOSTINGER operations, UAB confirmed by e-mail to Forum that the <flexjetaviation.com> domain name is registered with HOSTINGER operations, UAB and that Respondent is the current registrant of the name. HOSTINGER operations, UAB has verified that Respondent is bound by the HOSTINGER operations, UAB 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 February 11, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 3, 2025 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@flexjetaviation.com. Also on February 11, 2025, the Written Notice of the Complaint, notifying Respondent of the e-mail 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, Forum transmitted to the parties a Notification of Respondent Default.

On March 4, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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

Complainant made the following contentions.

1. The Complainant is a United States company engaged in the provision of aircraft management, aircraft servicing, air transportation and related goods and services.

2. The Complainant provides its goods and services under the trademark for FLEXJET. In particular, the evidence will establish that the Complainant has acquired registered trademark rights in the FLEXJET trademark by virtue of its registration of that mark with the United States Patent and Trademark Office ("USPTO"), registration number 2367318, registered on July 18, 2000 ("the FLEXJET trademark"). The Complainant has used the FLEXJET trademark since its registration to offer its goods and services.

3. The FLEXJET trademark has attracted substantial goodwill and is uniquely associated with the Complainant's goods and services.

4. As well as its trademark, Complainant has registered the domain name <flexjet.com> that it uses in its business and in particular for its website at www.flexjet.com where it markets its products under the FLEXJET trademark and brand.

5. The Respondent registered the <flexjetaviation.com>, domain name on July 6, 2024 ("the disputed domain name").

6. The disputed domain name embodies, without the consent of the Complainant, the FLEXJET trademark with the addition of the word "aviation" and the generic Top Level Domain ".com".

7. The disputed domain name is confusingly similar to the FLEXJET trademark.

8. The Respondent has no rights or legitimate interests in the disputed domain name. That is so because:

(b) the formulation and use of the domain name show that the intention of the Respondent has been to deceive the Complainant's customers and internet users in general into believing that the domain name is a legitimate and official domain name of the Complainant which it is not;

(c) the Respondent in its only reply to the Complainant has proposed that the parties make a deal and negotiate with respect to the domain name; and

(d) there is no ground on which it could conceivably be shown that the Respondent has a right or legitimate interest in the disputed domain name.

9. The Respondent has registered and used the disputed domain name in bad faith. That is so because:

(b) the Respondent has caused the domain name to resolve to a website that purports to market private aviation and related luxury services which are goods and services with respect to which the Complainant's FLEXJET trademark is registered;

(c) the Respondent has extensively used the FLEXJET trademark and other intellectual property of the Complainant without permission;

(d) the Respondent has not provided any or any legitimate contact information but has contrived to direct customer inquiries to a WhatsApp chat;

(e) the fact that the Respondent continues to own the domain name creates the permanent possibility of further infringement of the FLEXJET trademark and confusion if it remains the registrant of the disputed domain name; and

(f) all of the acts, facts, matters and circumstances to be revealed by the evidence will show that the Respondent registered and used the disputed domain name in bad faith.

B. Respondent

Respondent failed to submit a formal Response in this proceeding.

However, the Respondent sent the following email to Forum:

"The best way to resolve this is we make a deal am open for negotiation. I never took the domain from you by force i bought it legally. Let's negotiation."

FINDINGS

1. The Complainant is a United States company engaged in the provision of aircraft management, aircraft servicing, air transportation and related goods and services.

2. The Complainant provides its goods and services under the trademarks for FLEXJET. In particular, the evidence has established that the Complainant has acquired registered trademark rights in the FLEXJET trademark by virtue of its registration of that mark with the United States Patent and Trademark Office ("USPTO"), registration number 2367318, registered on July 18, 2000 ("the FLEXJET trademark"). The Complainant has used the FLEXJET trademark since its registration to offer its goods and services.

3. The Respondent registered the <flexjetaviation.com> domain name on July 6, 2024 ("the disputed domain name").

4. The disputed domain name embodies, without the consent of the Complainant, the FLEXJET trademark and the Respondent has added the generic word "aviation" and the generic Top Level Domain ".com".

5. The Respondent has used the domain name to offer aviation services purporting to be the same services as those offered by the Complainant under its FLEXJET trademark, which is calculated to cause confusion to internet users and is an infringement of the Complainant's trademark.

6. By reason of the matters aforesaid, and as established by the evidence, the disputed domain name is confusingly similar to the FLEXJET trademark, the Respondent has no rights or legitimate interests in the disputed domain name and the disputed domain name has been registered and used in bad faith.

7. Accordingly, the disputed domain name should be transferred from the Respondent to the Complainant.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) ("Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint").

Identical and/or Confusingly Similar

The first question that arises is whether the Complainant has rights in a trademark or service mark on which it may rely. The evidence has shown that the Complainant provides its goods and services under the trademark for FLEXJET. In particular, the evidence has established that the Complainant has acquired registered trademark rights in the FLEXJET trademark by virtue of its registration of that mark with the United States Patent and Trademark Office("USPTO"), registration number 2367318, registered on July 18, 2000 ("the FLEXJET trademark"). The evidence shows that the trademark, having been registered in 2000 was assigned by Bombardier Aerospace Corporation to the Complainant, which assignment was registered on April 12, 2013.The Complainant has used the FLEXJET trademark since its registration to offer its goods and services.

The aforesaid facts have been established by documentary evidence that the Panel has examined and finds to be in order.

The Complainant has thus established its trademark rights and hence its standing to bring this proceeding.

The next question that arises is whether the disputed domain name is identical or confusingly similar to the Complainant's FLEXJET trademark. The Panel finds that the disputed domain name is confusingly similar to the FLEXJET trademark for the following reasons. The disputed domain name embodies, without the consent of the Complainant, the FLEXJET trademark with the addition of the word "aviation" and the generic Top Level Domain ".com". When a domain name includes a trademark, as in the present case, it is more likely than not that the domain name is confusingly similar to the trademark. In the present case it is obviously so. Thus, internet users would read the domain name as invoking the trademark and as dealing with the Complainant's aviation and related goods and services offered under the FLEXJET trademark and as being either a domain name of the Complainant itself or one that has been registered with its consent. The addition of the generic word "aviation" has the effect that the domain name would be interpreted by internet users as signifying the goods and services of the Complainant offered under the FLEXJET trademark, namely "passenger aircraft management for others, namely, managing and arranging passenger aircraft operations".

The addition of the generic Top Level Domain ".com" is ignored in making the comparison between the domain name and the trademark, as all domain names must have such an extension.

Thus, internet users would read the domain name as invoking the FLEXJET trademark, as dealing with the Complainant's goods and services offered under the trademark and as being a domain name of the Complainant itself or a domain name that has been registered with its consent.

The Panel therefore finds that the disputed domain name is confusingly similar to the FLEXJET trademark under Policy ¶ 4(a)(i).

The Complainant has thus made out the first of the three elements that it must establish under the Policy.

Rights or Legitimate Interests

It is now well established that the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) and that, if the prima facie case is made out, the burden then shifts to the Respondent to show that it does have such rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)).

The Panel finds on the evidence that the Complainant has made out a prima facie case that arises from the following considerations. Several of these considerations overlap, but the substance of them in combination is as follows. The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name on all of the grounds relied on by the Complainant:

(a) the domain name consists of the FLEXJET trademark and the addition of the word "aviation", without any permission to do so, thereby evincing the intention to infringe and be confusingly similar to the trademark; using the trademark in the domain name is itself an infringement of the trademark; moreover, it must be concluded that the Respondent's intention was to give the false impression that it was entitled to use the trademark in the domain name and its effect was to confuse internet users by suggesting that it could provide the same aviation services as the Complainant; thus, this conduct could not conceivably give rise to a right or legitimate interest in the domain name used to perpetrate that subterfuge;

(b) the same considerations show that the formulation and use of the domain name were intended to deceive the Complainant's customers and internet users in general into believing that the domain name is a legitimate and official domain name of the Complainant which it is not;

(c) the record shows that the Respondent sent an email to Forum on February 11, 2025, after the service of the Complaint and its only reply to the Complaint proposing that the parties make a "deal" and negotiate with respect to the domain name; thus, the Respondent had an opportunity to show how it had a right or legitimate interest in the domain name, which it has not done; rather it has suggested a deal, which is open to the interpretation that it has no such right or legitimate interest, but is prepared to sell the domain name to the Complainant;

(d) there is no evidence showing any ground on which it could conceivably be shown that the Respondent has a right or legitimate interest in the disputed domain name; there is no evidence that the Respondent has used the domain name for a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i); nor is it likely that it is commonly known by the domain name within the meaning of Policy ¶ 4(c)(ii) when it registered the domain name in the name Addi Lobster and gave its email address as "edwardcodingpython@gmail.com"; and there is no evidence that it used the domain name for a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii).

The Complainant has therefore made out a persuasive case for all of the grounds it relies on to show that the Respondent does not have a right or legitimate interest in the disputed domain name.

All of these matters make out the prima facie case against the Respondent. The Respondent has not filed a formal Response, has not shown in its aforesaid email to Forum any right or legitimate interest in the domain name and has thus not rebutted the prima facie case against it.

The Complainant has therefore made out the second of the three elements it must establish under the Policy.

Registration and Use in Bad Faith

It is clear that to establish bad faith for the purposes of the Policy, the Complainant must show that the disputed domain name was registered and used in bad faith. It is also clear that the criteria set out in the Policy ¶ 4(b) are not exclusive but that domain name proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.

The Complainant has submitted that the Respondent has registered and used the disputed domain name in bad faith on several grounds. In view of the evidence discussed above, which is equally applicable to bad faith as it is to rights and legitimate interests and which it is not necessary to repeat, it is clear that the Complainant has made out all of the grounds relied on. The Respondent has clearly been motivated by bad faith in the registration and use of the domain name and in particular in the deception of potential buyers and internet users discussed above. It is clear from the evidence that, as the Complainant has submitted:

(a) the Respondent's registration and use of the domain name show that it has intended to and has generated confusion between the Complainant and the Respondent and their respective websites within the meaning of Policy ¶ 4(b)(iv); the Complainant's website at www.flexjet.com which the Panel has examined, promotes its legitimate goods and services including its aircraft, the quality and availability of its services, its adherence to safety standards, facilities, maintenance, luxury services, concierge services, convenience and expertise; the Complainant submits that the disputed domain name has been used to market private aviation and luxury events; the Panel has verified this by examining the use of the domain name as shown from the Wayback Machine at www.archive.com; this shows that the domain name has been used to offer "our fleet", concierge services, luxury events, travel planning, aviation services and other facilities, the ambit of which is the same as the Complainant's goods and services; thus, there can be no doubt that the intention of the Respondent behind the registration and use of the domain name has been to generate confusion with the Complainant's trademark as to the legitimacy of the foregoing services that the Respondent allegedly offers; this brings the situation squarely within Policy ¶ 4(b)(iv), showing that the domain name was registered and has been used in bad faith;

(b) the same evidence shows that the Respondent has caused the domain name to resolve to its website that purports to market private aviation and other luxury services which are goods and services with respect to which the Complainant's FLEXJET trademark is registered;

(c) the same evidence shows that the Respondent has extensively used the FLEXJET trademark and other intellectual property of the Complainant without permission;

(d) the evidence also shows that Respondent has not provided any or any legitimate contact information but has contrived to direct customer inquiries to a WhatsApp chat;

(e) the Complainant submits that although the Respondent's website has been taken down, the fact that the Respondent continues to own the domain name creates the permanent possibility of further infringement of the FLEXJET trademark and confusion if it remains the registrant of the domain name; the Panel accepts that submission; and

(f) all of the evidence points to the same conclusion, that the Respondent registered and used the disputed domain name in bad faith; as noted above, the Respondent has had an opportunity to show that it did not register and use the domain name in bad faith; it has not done so, but has sought a "deal" and negotiations, a thinly-veiled innuendo that it has no defence and that it has registered and used the domain name in bad faith.

Finally, in addition to the specific provisions of the Policy and having regard to the totality of the evidence, the Panel finds that, in view of the Respondent's registration of the disputed domain name using the FLEXJET trademark and in view of the conduct of the Respondent, as shown by all of the available evidence, the Respondent registered and used the disputed domain name in bad faith within the generally accepted meaning of that expression.

The Complainant has thus made out the third of the three elements that it must establish.

The Complainant has therefore established all of the elements that it must show under the Policy and it is entitled to the relief it seeks.

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 <flexjetaviation.com> domain name be TRANSFERRED from Respondent to Complainant.

The Honorable Neil Anthony Brown KC

Panelist

Dated: March 5, 2025