DECISION

 

AAR CORP. v. Sean Regan

Claim Number: FA2503002145015

PARTIES

Complainant is AAR CORP. ("Complainant"), represented by Alexis Degler of Barnes & Thornburg LLP, Illinois, USA. Respondent is Sean Regan ("Respondent"), Illinois, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <aarcorpusa.com>, registered with NameCheap, 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.

 

Debrett G. Lyons as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on March 13, 2025; Forum received payment on March 13, 2025.

 

On March 13, 2025, NameCheap, Inc. confirmed by e-mail to Forum that the <aarcorpusa.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 March 17, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 7, 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@aarcorpusa.com. Also on March 17, 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 April 8, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Debrett G. Lyons 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 asserts trademark rights in AAR. Complainant holds a national registration for that trademark.  Complainant submits that the domain name is confusingly similar to its trademark.

 

Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name because it is not known by the name and the domain name has been used to redirect internet users back to Complainant's own website.

 

Complainant alleges that Respondent registered and used the disputed domain name in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The factual findings pertinent to the decision in this case are that:

1.       Complainant uses the trademark AAR in connection with its business providing aviation related goods and services;

2.       Complainant is the owner of a registration with the United States Patent & Trademark Office ("USPTO") for the trademark, AAR, but for the purposes of this decision it is noted here that it also owns Reg. No. 2,389,476, registered September 26, 2000, for the trademark, AARCORP.COM;

3.       the disputed domain name was registered on March 2, 2025, using a privacy service to shield the name of Respondent; and

4.       there is no evidence accompanying the Complaint of how the domain name has been used.

 

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."

 

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.  

 

Identical and/or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.

 

It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)).  Complainant therefore has rights in AARCORP.COM since it provides proof of its registration of that trademark with the USPTO, a national trademark authority. 

 

Most UDRP decisions observe that the gTLD/ccTLD can be disregarded when making the comparison between the relevant domain name and trademark, but here a side-by-side comparison shows the only difference to be addition of the known country name abbreviation, "USA", allowing the Panel to simply find that the terms are confusingly similar (see, for example, Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018): "Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."; Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum April 11, 2018) finding <franklincoveykorea.com> confusingly similar to the complainant's FRANKLIN COVEY mark).

 

The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

 

Rights or Legitimate Interests

Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:

 

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;  or

 

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights;  or

 

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

 

Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).

 

The name of Respondent was shielded by a privacy service. Once revealed in consequence of these proceedings as Sean Regan, nothing indicates that Respondent might be commonly known by the domain name (see, for example, Tercent Inc. v. Lee Yi, FA 0139720 (Forum Feb. 10, 2003) stating "nothing in [the respondent's] WHOIS information implies that [the respondent] is 'commonly known by' the disputed domain name" as one factor in determining that Policy ¶ 4(c)(ii) does not apply.").

 

There is no evidence that Respondent has any trademark rights.  Complainant states that there is no association between the parties.  There is no evidence of how the domain name is used. In particular, there is no evidence in support of Complainant's assertion that:

 

 "…[t]he Disputed Domain Name forwards internet users to Complainant's website by redirecting the Disputed Domain Name to the homepage Complainant's AAR Website."  

 

The Panel's own research indicates that is not the case, at least not at the time of the Decision. In these unsatisfactory circumstances, the Panel has determined to treat the disputed domain name as having not been used. On that basis, the Panel finds a prima facie case that Respondent lacks any rights or legitimate interests (see, for example, Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) finding that the respondent's non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii)).

 

The onus shifts to Respondent and in the absence of a Response, Panel finds that Respondent has no rights or interests and so finds that the second limb of the Policy is satisfied.

 

Registration and Use in Bad Faith

Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith. 

 

Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established. 

 

The four specified circumstances are:

 

'(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or

 

(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

 

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

 

(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent's website 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 the respondent's website or location or of a product or service on the site or location.'

 

The Complaint makes various submissions regarding bad faith which the Panel has re-stated below such that they relate first to the paragraph 4(b) circumstances. The Complaint states that:

 

"… by using a domain name that is confusingly similar to Complainant's [trademark], it is clear that Respondent registered the Disputed Domain primarily for the purpose of deceiving consumers as to the source, sponsorship, affiliation, or endorsement of Respondent's Domain and thereby disrupting Complainant's business and for the primary purpose of creating deceptive "aarcorpus.com" email addresses. This constitutes bad faith registration and use of the Disputed Domain under UDRP Policy 4(b)(iii)." 

 

The difficulties with this submission are that (a) there is no evidence of Respondent having used <aarcorpus.com> (not the disputed domain name), nor the disputed domain name as part of an email addresses, and (b) there is no evidence of disruptive behaviour or of the parties being competitors, both requisite elements of paragraph 4(b)(iii).

 

The Complaint goes on to state that:

 

"[b]y using a domain name confusingly similar to Complainant's [trademark], Respondent clearly intends to deceive the public as to the source, sponsorship, affiliation, or endorsement of Respondent's activities and, thus, create a likelihood of confusion with Complainant and Complainant's [trademark]. This constitutes bad faith registration and use under the Policy, paragraph 4(b)(iv)."

 

The problems with this submission are that paragraph 4(b)(iv) requires evidence (a) of Respondent's use of the domain name likely to draw internet users to respondent's website or other on-line location, and (b) commercial gain from that use. Evidence of both is lacking from the Complaint.

 

None of the paragraph 4(b) scenarios is satisfied and so Complainant must establish, as separate matters, registration in bad faith and use in bad faith. The Panel is satisfied of registration in bad faith. Notwithstanding the lack of proof that the disputed domain name redirects to Complainant's website – evidence which would have put the matter of registration in bad faith beyond doubt – the Panel observes without assistance from Complainant that the underlying domain name registrant/holder disclosed by the Registrar gave Complainant's address as his address.

 

The critical issue in these proceedings thus resolves to proof of use in bad faith when there has been no proof of use provided. In this regard the Panel notes here that, notwithstanding the lack of a Response, Complainant must still positively satisfy the requirements of paragraph 4(a)(i) of the Policy. Whilst the Panel may draw reasonable inferences and accept reasonable allegations, it may deny relief where a complaint makes only unsubstantiated submissions (see, for example, WIPO Jurisprudential Overview 3.0 at ¶ 4.3; 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"). In this regard, proof of use in bad faith is an fundamental requirement.

 

What remains of relevance in the Complaint are the following submissions:

 

"Originally founded in 1955, Complainant has been continuously and extensively engaged in the business of providing aviation related goods and services"

 

"Complainant owns strong common law trademark rights in the AAR Marks, embodying invaluable goodwill, and the Marks are exceedingly strong, based on inherent distinctiveness and commercial strength."

 

"When Respondent registered the Disputed Domain in 2023 (sic.), Complainant had already been using its AAR mark for more than 20 years."

 

There are no submissions on the matter, but the Panel observes that non-use (or lack of evidence of use) of a disputed domain name does not in principle prevent a finding of bad faith use if the doctrine of passive holding can be applied in line with the leading case of Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003).  The fundamental requirements identified in that decision are proof of notoriety of the trademark and lack of any plausible good faith use to which the disputed domain could be put by the respondent. 

 

The WIPO Jurisprudential Overview 3.0 asks at ¶ 1.3 : What does a complainant need to show to successfully assert unregistered or common law trademark rights? In answer, it states that:

 

"To establish unregistered or common law trademark rights for purposes of the UDRP, the complainant must show that its mark has become a distinctive identifier which consumers associate with the complainant's goods and/or services.

 

Relevant evidence demonstrating such acquired distinctiveness (also referred to as secondary meaning) includes a range of factors such as (i) the duration and nature of use of the mark, (ii) the amount of sales under the mark, (iii) the nature and extent of advertising using the mark, (iv) the degree of actual public (e.g., consumer, industry, media) recognition, and (v) consumer surveys.

Specific evidence supporting assertions of acquired distinctiveness should be included in the complaint; conclusory allegations of unregistered or common law rights, even if undisputed in the particular UDRP case, would not normally suffice to show secondary meaning."

 

The Complaint itself makes unsubstantiated claims of first use, continuous use, and common law trademark rights. Exhibits C and D, extracts from Complainant's own website, give broad indications of the scope and duration of Complainant's business but do nothing in aid of indicia (ii) – (iv) of ¶ 1.3 of the WIPO Overview.

 

Otherwise, the Complaint claims use of the trademark on the usual social media platforms but makes no effort to provide the Panel with anything useful in terms of quantitative proof of reputation.

 

The Complaint has been poorly presented and reasoned and may have been fairly dismissed for more than one reason. That said, the Panel has on this occasion looked past these shortcomings and is just prepared to find enough evidence to meet the requirements of Telstra Corporation Limited v. Nuclear Marshmallows with respect to passive holding (use) in bad faith. That finding has been influenced in large part by the improbability of any good faith use to which the domain name could be put and the abundantly clear evidence of registration in bad faith.

 

Accordingly, the Panel finds that the third and final element of the Policy 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 <aarcorpusa.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Debrett G. Lyons, Panelist

Dated:  April 9, 2025