DECISION

 

Textron Innovations Inc. v. Alexander Seel

Claim Number: FA2504002151254

 

PARTIES

Complainant is Textron Innovations Inc. ("Complainant"), represented by Jeremiah A. Pastrick, Indiana, USA. Respondent is Alexander Seel ("Respondent"), Germany.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <cessna421aviation.com> ("Domain Name"), registered with Wix.com Ltd.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on April 17, 2025; Forum received payment on April 17, 2025.

 

On April 22, 2025, Wix.com Ltd. confirmed by e-mail to Forum that the <cessna421aviation.com> domain name is registered with Wix.com Ltd. and that Respondent is the current registrant of the name. Wix.com Ltd. has verified that Respondent is bound by the Wix.com Ltd. 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 April 24, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 14, 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@cessna421aviation.com. Also on April 24, 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.

 

The Respondent did not file a formal response, but an email communication dated April 28, 2025 was sent to Forum.

 

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

 

On May 15, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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, Textron Innovations Inc. is a diversified company that owns and operates the Cessna private and general aircraft manufacturing business. Complainant asserts rights in the CESSNA mark based upon registration with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 867,435, registered April 1, 1969). Respondent's <cessna421aviation.com> is confusingly similar to Complainant's CESSNA mark because it incorporates the mark in its entirety and adds the generic number and word "421 aviation" (421 being a model number of a popular aircraft manufactured by Complainant) and the generic top-level domain name ("gTLD") ".com".

 

Respondent does not have rights or legitimate interests in the <cessna421aviation.com> domain name. Respondent is not licensed or authorized to use Complainant's CESSNA mark and is not commonly known by the Domain Name. Respondent also does not use the Domain Name for any bona fide offering of goods or services or legitimate noncommercial or fair use.  Rather, the Domain Name resolves to a website operated by Respondent ("Respondent's Website") where Respondent uses the CESSNA name and imagery to divert web traffic and offer competing and related services.  Respondent's services are not authorized by Complainant and Respondent fails to disclaim the absence of any association with Complainant.

 

Respondent registered and uses the <cessna421aviation.com> domain name in bad faith. Respondent offers competing and related services under the CESSNA mark.  Respondent had actual knowledge of Complainant's rights in the CESSNA mark and uses the Domain Name to disrupt the Complainant's business.

 

B. Respondent

Respondent failed to submit a formal Response in this proceeding. Forum received an email from Respondent on April 28, 2025 stating that "the website was for private information and not for commercial use, there was no traffic at all. The aircraft is used only privately, there is no AOC and no commercial use. I have deleted the domain." 

 

In certain cases where the Respondent has clearly consented to the transfer of the Domain Name to the Complainant, the Panel is authorized to forgo traditional UDRP analysis.  In the present case, while Respondent has deleted the Respondent's Website, it is not clear whether they are prepared to consent to the transfer of the Domain Name to the Complainant without compensation and as such it is not appropriate to issue an order for relief without being satisfied that the elements of the Policy are satisfied.

 

FINDINGS

Complainant holds trademark rights for the CESSNA mark.  The Domain Name is confusingly similar to Complainant's CESSNA mark.  Complainant has established that Respondent lacks rights or legitimate interests in the use of the Domain Name and that Respondent registered and has used of the Domain Name in bad faith.

 

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

Complainant has rights in the CESSNA mark based upon its registration with the USPTO (e.g., Reg. No. 867,435, registered April 1, 1969). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant's rights in the HOME DEPOT mark).

 

The Panel finds that the <cessna421aviation.com> domain name is confusingly similar to the CESSNA mark as it fully incorporates the CESSNA mark and adds the words/numbers "421 aviation" (421 referring to a model of plane offered under the CESSNA mark) and the ".com" gTLD.  The addition of generic terms along with a gTLD to a wholly incorporated trademark does not distinguish a disputed domain name from a mark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i)); see also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) ("A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.").

 

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

 

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names."). The Panel holds that Complainant has made out a prima facie case.

 

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the CESSNA mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA 1621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where "Privacy Service" was listed as the registrant of the disputed domain name).  The WHOIS lists "Alexander Seel" as registrant of record. Coupled with Complainant's unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).

 

The Domain Name is presently inactive but prior to the commencement of the proceeding resolved to the Respondent's Website which on its face and contrary to the claims made by the Respondent of non-commercial use appears to be a commercial website promoting Respondent's flying business, which offers private flight services. The Respondent apparently provides these services using a Cessna 421 aircraft however provides no other information about its business, including its trading name, business history or any connection or authorization by the Complainant. The Respondent's Website does not disclaim any connection with the Complainant or otherwise take any steps to prevent an incorrect impression being given by the Domain Name that the Respondent's Website (and the Respondent itself) is authorized by or connected with Complainant.

 

In the absence of any evidence or submissions from the Respondent, the Panel finds that the mere fact that Respondent uses a Cessna 421 aircraft to offer its flying services does not provide it with rights or legitimate interests to register a Domain Name that wholly incorporates the CESSNA mark and the model number of Complainant's aircraft. Given the nature of the Domain Name, which suggests that any resolving website is an official website or an authorized website, Respondent's use of the Domain Name to divert users searching for Complainant's 421 model to the Respondent's Website is neither fair use nor a bona fide offering of goods and services under the Domain Name. The use of a domain name to divert users, for commercial gain, to a third-party website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) ("Respondent uses the [disputed] domain name to divert Internet users to Respondent's website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)."); see also Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) ("Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent's unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).").

 

Registration and Use in Bad Faith

The Panel finds on the balance of probabilities that, at the time of registration of the Domain Name, November 21, 2022, Respondent had actual knowledge of the Complainant and its CESSNA mark given the significant reputation of the CESSNA mark and the fact that the Respondent's Website offers services using the Complainant's aircraft and makes reference to the Complainant. Furthermore, there is no obvious explanation, nor has one been provided, for an entity to register the Domain Name other than to take advantage of Complainant's reputation in the CESSNA mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).

 

Complainant argues that Respondent registered and uses the Domain Name in bad faith to create a likelihood of confusion with Complainant's CESSNA mark in order to attract Internet users for commercial gain. In the absence of any alternative reasonable explanation and on the balance of probability, the Panel considers that the most likely explanation for Respondent's actions is that the Domain Name was registered as part of a scheme to trade off the goodwill of Complainant's CESSNA mark for Respondent's commercial gain. More specifically Respondent seeks to divert users aware of Complainant's CESSNA 421 aircraft to the Respondent's Website where it promotes its private aviation services. This conclusion is supported by Respondent's failure to disclaim any connection between Respondent and Complainant and the nature of the Domain Name, which simply refers to the Complainant's model number. Use of a confusingly similar domain name for commercial purposes not directly competitive with a complainant's business can indicate bad faith registration and use per Policy ¶¶ 4(b)(iii) and/or (iv). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant's business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) ("The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant's METLIFE mark in order to profit from the goodwill associated with the mark."); see also Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) ("Respondent is using the domain name at issue to resolve to a website at which Complainant's trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant's business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.").

 

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

 

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 <cessna421aviation.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Nicholas J.T. Smith, Panelist

Dated: May 16, 2024