Delta Corporate Identity, Inc. and Delta Air Lines, Inc. v. Yong Li
Claim Number: FA0510000576550
Complainants are Delta Corporate Identity, Inc. and Delta Air Lines, Inc. (collectively, “Complainant”), represented by Ryan M. Kaatz, of Ladas & Parry, Digital Brands Practice, 224 South Michigan Avenue, Chicago, IL 60604. Respondent is Yong Li (“Respondent”), P.O. Box 904, Beijing, 100029, Beijing, 100029, US.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwdeltaairlines.com>, registered with Enom, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 13, 2005; the National Arbitration Forum received a hard copy of the Complaint on October 17, 2005.
On October 13, 2005, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <wwwdeltaairlines.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 October 19, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 8, 2005 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@wwwdeltaairlines.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 15, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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:
Delta Corporate Identity, Inc. and Delta Air Lines, Inc. (together referred to herein as “Delta,” “Delta Air Lines” or “Complainant”) are known as a worldwide leader in air transportation services for persons, property and mail. Delta’s services, including those of its affiliates, extend to the provision of arena facilities for exhibitions, education and training in flight instruction and aviation science, tracking and monitoring of baggage, cargo, mail, freight, package shipments and aircraft parts, in-flight entertainment services and vacation-planning services.
Delta Air Lines’ leadership has led the way to a diverse portfolio of respected brand names. Delta Air Lines markets its services under the brand names of Delta, Delta Air Lines, Delta Shuttle, Delta Connection, Delta SkyTeam, Delta Center, Delta Airelite, Song, Fly Song and Song Airlines.
Delta Air Lines was founded in 1928. As of the filing of its most recent annual report, Delta Air Lines serves 217 domestic cities in 46 states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands. With its domestic and international partners, Delta Air Lines’ route network covers 490 destinations in 85 countries. Delta Air Lines is the world’s second-largest airline in terms of passengers carried and the leading U.S. carrier across the Atlantic. Delta Air Lines owns the registrations for the <delta.com> and <deltaairlines.com> domain names, which are connected to Complainant’s primary Delta Air Lines website. More information is available at www.delta.com.
Delta Air Lines is the owner of the trademarks, among others, in the United States and China, all of which incorporate the designation “DELTA.” The marks include the DELTA AIR LINES mark, which was first registered on April 4, 1950. The registrations show Delta Air Lines’ ownership of the exclusive right to use these marks in U.S. and Chinese commerce, specifically for air transportation services. Most of the marks cover travel-related services, including but not limited to air travel and the related services provided by an airline.
Respondent registered
the domain name <wwwdeltaairlines.com> on November 21, 2002, well
after Delta Air Lines’ long-standing registration and use of its trademarks.
Without Delta Air Lines’ authorization, Respondent is using the Offending
Domain to divert Internet users seeking Delta Air Lines’ official website
online to a website that features links titled, “Delta Airlines,” “Airline Tickets”
and “Flight Status,” among others.
These aforementioned links further divert Internet users to websites
offering airline tickets for sale. For example, Internet users that click on
the “Airline Tickets” link are diverted to a website offering links to
airline-ticket-selling services, including Orbitz, CheapTickets, TravelZoo and
Expedia.com. Furthermore, the website at the Offending Domain contains links
titled, “Free Casino Games” and “Dating,” which divert web traffic seeking
Delta’s goods and services to commercial websites offering “big cash jackpots”
and “Meet new friends and sex partners,” thus promoting gambling and sex.
Respondent likely garners click-through fees from Internet users who commit
typographical errors looking for Complainant’s official websites online.
Once Complainant
became aware of Respondent’s unauthorized registration and use of the Offending
Domain, Complainant sent a cease-and-desist letter to Respondent, which was
returned undelivered. Complainant followed up with an e-mail to Respondent, to
which Complainant never received a response.
A number of previous administrative proceedings brought against Respondent have found in favor of trademark holders and therefore those panels have ordered that domain names be transferred from Respondent to the trademark holder. See e.g., Expedia, Inc. v. Yong Li, FA 429084 (Nat. Arb. Forum Apr. 7, 2005); OMX, Inc. v. Yong Li, FA 400438 (Nat. Arb. Forum Feb. 25, 2005); ATA Airlines, Inc. v. Yong Li, D2003-0403 (WIPO Jul. 11, 2003).
FACTUAL AND LEGAL GROUNDS
This Complaint is based on the
following factual and legal grounds: ICANN Rule 3(b)(ix). The facts of this
case establish that each of the three elements set forth in paragraph 4(a) of
the Policy are satisfied, namely: (1) the <wwwdeltaairlines.com> domain
name is confusingly similar to Complainant’s DELTA and DELTA AIR LINES marks,
in which Complainant has rights; (2) Respondent has no rights to or legitimate
interests in the Offending Domain; and (3) Respondent registered and used the Offending
Domain in bad faith.
[a.] Respondent’s <wwwdeltaairlines.com> domain name is confusingly similar to Complainant’s DELTA and DELTA AIR LINES marks, in which Complainant has rights. ICANN Rule 3(b)(ix)(1); Policy ¶4(a)(i).
Complainant has registered trademarks incorporating the designations DELTA and/or DELTA AIR LINES all over the world, including the United States and China. Complainant’s trademark registrations with the United States Patent and Trademark Office (“USPTO”), along with Complainant’s registrations in China, establish Complainant’s rights in the DELTA and DELTA AIR LINES marks pursuant to Policy ¶4(a)(i). See Men’s Wearhouse, Inc. v. Wick, FA 117861 (NAF Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning.”); Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this assumption).
The Offending Domain is confusingly similar to the DELTA and DELTA AIR LINES marks. Under U.S. law, the points of comparison for a word mark are appearance, sound, and meaning or connotation. In re Lamson Oil Co., 6 USPQ2d 1041, 1042 n.4 (TTAB 1987).
Respondent’s <wwwdeltaairlines.com> domain name incorporates Complainant’s DELTA and DELTA AIR LINES marks in their entirety and simply omits the period after the “www” prefix. Panels have consistently held that the omission of the period between the “www” prefix and the domain name does not sufficiently distinguish the domain name from the mark pursuant to Policy ¶4(a)(i) because the mark remains the dominant element of the domain name. See Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been established because the prefix "www" does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from Complainant's NEIMAN-MARCUS mark); Dana Corp. v. $$$ This Domain Name Is For Sale $$$, FA 117328 (Nat. Arb. Forum Nov. 19, 2002) (finding Respondent's <wwwdana.com> domain name confusingly similar to Complainant's registered DANA mark because Complainant's mark remains the dominant feature); Marie Claire Album v. Blakely, D2002-1015 (WIPO Dec. 23, 2002) (holding that the letters "www" are not distinct in the "Internet world" and thus Respondent 's <wwwmarieclaire.com> domain name is confusingly similar to Complainant's MARIE CLAIRE trademark).
The addition of the gTLD “.com” serves no purpose in distinguishing the Offending Domain from the DELTA and DELTA AIR LINES marks because gTLDs are a functional necessity rather than an arbitrary trademark choice. See MasterCard Int’l Inc. v. John Henry Enterprises, D2001-0632 (WIPO June 28, 2001); Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) ".com" after the name POMELLATO is not relevant); Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
[b.] Respondent has no rights to or legitimate interests in the <wwwdeltaairlines.com> domain name. ICANN Rule 3(b)(ix)(2); Policy ¶4(a)(ii).
Without
authorization, Respondent has registered and used a domain name that
incorporates a typosquatted version of Complainant’s DELTA AIR LINES mark in
its entirety. The Panel should find that Respondent’s typosquatting itself
demonstrates that Respondent has no rights to or legitimate interests in the
Offending Domain under Policy ¶4(a)(ii). See Nat’l Ass’n of Prof’l Baseball
Leagues, Inc. v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting
… as a means of redirecting consumers against their will to another site, does
not qualify as a bona fide offering of goods or services, whatever may be the
goods or services offered at that site.”); Diners Club Int’l Ltd. v. Domain
Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23,
2003) (holding that Respondent’s <wwwdinersclub.com> domain name,
a typosquatted version of Complainant’s DINERS CLUB mark, was evidence in and
of itself that Respondent lacks rights or legitimate interests in the disputed
domain name vis-à-vis Complainant); Medline, Inc. v. Domain Active Pty. Ltd.,
FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (finding no rights or legitimate
interests where Respondent merely redirected the <wwwmedline.com> domain
name to Complainant’s own website at <medline.com>).
Moreover, Respondent is commercially using the Offending Domain to divert Internet users to a generic search-engine website that features links titled, “Delta Airlines,” “Airline Tickets” and “Delta Airline,” among others. Respondent’s registration and use of a domain name confusingly similar to Delta Air Lines’ trademarks to divert Internet users to websites offering airline tickets for sale, including Orbitz, CheapTickets, TravelZoo and Expedia.com, does not establish a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the domain pursuant to Policy ¶4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that respondent’s diversionary use of complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to competitors of complainant, was not a bona fide offering of goods or services); Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (finding that the respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with the complainant, was not a bona fide offering of goods or services); Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because the respondent's sole purpose in selecting the domain names was to cause confusion with the complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use).
Furthermore, since Respondent likely garners click-through fees from Internet users who commit typographical errors while searching for Delta Air Lines’ official websites online, Respondent’s commercial use of a domain name confusingly similar to Complainant’s DELTA and DELTA AIR LINES marks does not constitute a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) or a legitimate noncommercial or fair use of the domain pursuant to Policy ¶4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
Finally, the website
at the <wwwdeltaairlines.com> domain name contains links titled,
“Free Casino Games” and “Dating,” which divert web traffic seeking Delta Air
Lines’ goods and services to commercial websites offering “big cash jackpots”
and “Meet new friends and sex partners,” thus promoting gambling and sex.
Respondent’s use of a domain name confusingly similar to Delta Air Lines’ marks
to divert Internet traffic to adult-oriented websites tarnishes and dilutes
Complainant’s DELTA and DELTA AIR LINES marks and therefore the Panel should
find that Respondent is unable to avail itself of the safe harbor provisions of
Policy ¶¶4(c)(i) and (iii). See Isleworth Land Co. v. Lost In Space, SA,
FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (finding that the respondent’s use
of its domain name to link unsuspecting Internet traffic to an adult
oriented website, containing images of scantily clad women in provocative
poses, did not constitute a connection with a bona fide offering of
goods or services or a noncommercial or fair use); ABB Asea Brown Boveri
Ltd. v. Quicknet, D2003-0215 (WIPO May 26, 2003) (finding that “use
of the disputed domain name in connection with pornographic images and links
tarnishes and dilutes [Complainant’s mark]” and is evidence that the respondent
has no rights or legitimate interests in the disputed domain name); McClatchy
Mgmt. Serv., Inc. v. Carrington, FA 155902 (Nat. Arb. Forum June 2, 2003)
(holding that the use of domain names to divert Internet users to a
website that features pornographic material, has been “consistently held” to be
neither a bona fide offering of goods or services . . . nor a legitimate
noncommercial or fair use).
Complainant has not
authorized or licensed Respondent to register or use domain names that
incorporate Complainant’s DELTA or DELTA AIR LINES marks. Furthermore, to
Complainant’s knowledge, there are no prior trademark applications or
registrations in the name of Respondent for any mark incorporating various
permutations of the elements “DELTA” or “DELTAAIRLINES” anywhere in the world.
Moreover, pursuant to the WHOIS information related to the <wwwdeltaairlines.com>
domain name, the registrant of the domain is Yong Li. There is no affirmative
evidence to suggest that Respondent is commonly known by any variation of the
designations “DELTA” or “DELTAAIRLINES” and therefore the Panel should find
that Respondent is not commonly known by the Offending Domain pursuant to
Policy ¶4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum
May 16, 2001) (interpreting Policy ¶4(c)(ii) "to require a showing that
one has been commonly known by the domain name prior to registration of the
domain name to prevail"); Compagnie de Saint Gobain v. Com-Union Corp.,
D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interests
where respondent was not commonly known by the mark and never applied for a
license or permission from complainant to use the trademarked name); Charles
Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no
rights or legitimate interests where (1) respondent is not a licensee of
complainant; (2) complainant’s rights in the mark precede respondent’s
registration; (3) respondent is not commonly known by the domain name in
question).
[c.] Respondent has registered and used the <wwwdeltaairlines.com> domain name in bad faith. ICANN Rule 3(b)(ix)(3); Policy ¶4(a)(iii).
Respondent has
registered a domain name confusingly similar to Complainant’s marks and used
the Offending Domain to divert Internet users to Respondent’s generic
search-engine website, where Respondent likely garners click-through fees for
each Internet user misdirected to Respondent’s website who clicks on one of the
links. Moreover, the links on Respondent’s website further divert Internet
traffic to websites that offer airline tickets for sale in direct competition
with the services covered by Complainant’s trademarks. Therefore, the Panel
should find that Respondent has registered and used the <wwwdeltaairlines.com>
domain name in bad faith pursuant to Policy ¶4(b)(iv) because Respondent
has intentionally attempted to attract Internet users to its website for
commercial gain by creating a likelihood of confusion with Complainant’s marks
as to the source, sponsorship, affiliation or endorsement of Respondent’s
website. See State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb.
Forum Sept. 12, 2000) (finding bad faith where the respondent registered the
domain name <bigtex.net> to infringe on the complainant’s goodwill and
attract Internet users to the respondent’s website); Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's
prior use of the <mailonsunday.com> domain name is evidence of bad faith
pursuant to Policy ¶4(b)(iv) because the domain name provided links to
Complainant's competitors and Respondent presumably commercially benefited from
the misleading domain name by receiving ‘click-through-fees.’”); Am. Univ.
v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use
of a domain name that incorporates another's mark with the intent to deceive
Internet users in regard to the source or affiliation of the domain name is
evidence of bad faith.”); Luck’s Music Library v. Stellar Artist
Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that Respondent
had engaged in bad faith use and registration by linking the domain name to a
website that offers services similar to Complainant’s services, intentionally
attempting to attract, for commercial gain, Internet users to its website by
creating a likelihood of confusion with Complainant’s marks); ESPN, Inc. v.
Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) (finding bad faith
where Respondent linked the domain name to another website <iwin.com>,
presumably receiving a portion of the advertising revenue from the site by
directing Internet traffic there, thus using a domain name to attract Internet
users for commercial gain).
Respondent’s website
available through the Offending Domain also contains links to websites
promoting sex and gambling, for which Respondent also likely earns
click-through fees. The registration and use of domain names confusingly
similar to Delta Air Lines’ trademarks to misdirect Internet traffic to adult
websites for commercial gain further constitutes evidence of bad faith
registration and use under Policy ¶4(a)(iii). Ty, Inc. v. O.Z. Names,
D2000-0370 (WIPO June 27, 2000) (finding that linking domain names to graphic,
adult-oriented websites is evidence of bad faith, absent contrary evidence), cited
in CompUSA Management Company v. World Wide Web Comp USA, Inc., FA 096122
(Nat. Arb. Forum Jan. 26, 2001) (finding that Respondent’s use of a domain name
to divert Internet traffic to a website with links to pornographic and gambling
websites, for commercial gain, constituted evidence of bad faith).
Respondent has
registered and used a domain name that incorporates Complainant’s DELTA AIR
LINES trademark in its entirety, and has simply omitted the period after the
“www” prefix. Respondent’s activities constitute typosquatting as Respondent is
taking advantage of a common typing error committed by Internet users online.
The Panel should find that Respondent’s typosquatting itself is evidence of bad
faith registration and use pursuant to Policy ¶4(a)(iii). See Black &
Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the
<wwwdewalt.com> domain name was registered to “ensnare those individuals
who forget to type the period after the ‘www’ portion of [a] web-address,”
which was evidence that the domain name was registered and used in bad faith); RE/MAX
Int’l, Inc. v. Seocho, FA 142046 (Nat. Arb. Forum Feb. 25, 2003) (inferring
that the respondent’s registration of the <wwwremax.com> domain name,
incorporating the complainant’s entire mark, was done with actual notice of the
complainant’s rights in the mark prior to registering the infringing domain
name, evidencing bad faith); Nat’l Ass’n of Prof’l Baseball Leagues v.
Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the
intentional misspelling of words with intent to intercept and siphon off
traffic from its intended destination, by preying on Internauts who make common
typing errors. Typosquatting is inherently parasitic and of itself evidence of
bad faith.”); Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum
Oct. 15, 2003) (Respondent registered and used the <zonelarm.com> domain
name in bad faith pursuant to Policy ¶4(a)(iii) because the name was merely a
typosquatted version of Complainant’s ZONEALARM mark.).
Furthermore,
Respondent obviously knew of Complainant’s trademark rights, as well as Delta
Air Lines’ primary website at the <deltaairlines.com> domain name, since
Respondent registered and used a domain name that takes advantage of Internet
users who simply omit the period after the “www” prefix when searching for
Complainant’s home page. Respondent’s registration and use of the <wwwdeltaairlines.com>
domain name despite actual or constructive knowledge of Complainant’s
rights establishes Respondent’s bad faith registration and use of the Offending
Domain pursuant to Policy ¶4(a)(iii). See Orange Glo Int’l v. Blume, FA
118313 (Nat. Arb. Forum Oct. 4, 2002) (“Complainant’s OXICLEAN mark is listed
on the Principal Register of the USPTO, a status that confers constructive
notice on those seeking to register or use the mark or any confusingly similar
variation thereof.”); Pfizer,
Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the
link between the complainant’s mark and the content advertised on the
respondent’s website was obvious, the respondent “must have known about the
Complainant’s mark when it registered the subject domain name”).
Finally, a number of
trademark holders have similarly objected to Respondent’s registration and use
of domain names by filing complaints under the UDRP against Respondent. The
decisions against Respondent demonstrate Respondent’s pattern of registering
domain names to prevent trademark owners from reflecting their marks in
corresponding domain names, which evidences bad faith registration and use
pursuant to Policy ¶4(b)(ii). See Expedia, Inc. v. Yong Li, FA 429084
(Nat. Arb. Forum Apr. 7, 2005); OMX, Inc. v. Yong Li, FA 400438 (Nat.
Arb. Forum Feb. 25, 2005); ATA Airlines, Inc. v. Yong Li, D2003-0403
(WIPO Jul. 11, 2003).
B. Respondent failed to submit a Response in this proceeding.
Complainant, is known as a worldwide leader in air transportation services for persons, property and mail. Complainant’s services, including those of its affiliates, extend to the provision of arena facilities for exhibitions, education and training in flight instruction and aviation science, tracking and monitoring of baggage, cargo, mail, freight, package shipments and aircraft parts, in-flight entertainment services and vacation-planning services.
Complainant’s business was founded in 1928. Currently, Complainant’s business serves 217 domestic cities in forty-six states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands. Complainant is also the second-largest airline in terms of passengers carried and the leading U.S. carrier across the Atlantic.
Complainant holds numerous trademark registrations for its DELTA AIR LINES mark. Complainant has registered its DELTA AIR LINES with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 523,611 issued April 4, 1950).
Respondent registered the <wwwdeltaairlines.com> domain name on November 21, 2002. Respondent’s domain name resolves to a website featuring links to various third-party websites.
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. See 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 established rights in the DELTA AIR LINES
mark through registration of the mark with the USPTO. See Vivendi Universal Games
v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's
federal trademark registrations establish Complainant's rights in the BLIZZARD
mark.”); see
also Innomed Techs., 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 <wwwdeltaairlines.com>
domain name is confusingly similar to Complainant’s DELTA AIR LINES mark
because the domain name incorporates Complainant’s mark in its entirety and
merely adds the prefix “www” to the mark.
Such an addition is not enough to overcome the confusingly similar
aspects of Respondent’s domain name pursuant to Policy ¶4(a)(i). See
Marie Claire Album v. Blakely, D2002-1015 (WIPO Dec. 23, 2002) (holding
that the letters “www” are not distinct in the “Internet world” and thus the
respondent 's <wwwmarieclaire.com> domain name is confusingly similar to
the complainant's MARIE CLAIRE trademark); see
also Bank of Am. Corp. v. InterMos,
FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s domain
name <wwwbankofamerica.com> is confusingly similar to the complainant’s
registered trademark BANK OF AMERICA because it “takes advantage of a typing
error (eliminating the period between the www and the domain name) that users
commonly make when searching on the Internet”).
The addition of the top-level domain “.com” is irrelevant in determining whether the <wwwdeltaairlines.com> domain name is confusingly similar to Complainant’s mark. See Blue Sky Software Corp. v. Digital Sierra, Inc., D2000-0165 (WIPO Apr. 27, 2000) (holding that the domain name <robohelp.com> is identical to the complainant’s registered ROBOHELP trademark, and that the "addition of .com is not a distinguishing difference"); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants.").
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant asserts Respondent does not have rights or legitimate interests in the <wwwdeltaairlines.com> domain name. When a complainant establishes a prima facie case pursuant to Policy ¶4(a)(ii), the burden shifts to the respondent to prove that it has rights or legitimate interests. Due to Respondent’s failure to respond to the Complaint, the Panel infers Respondent does not have rights or legitimate interests in the disputed domain name. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once the complainant asserts that the respondent does not have rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide credible evidence that substantiates its claim of rights or legitimate interests in the domain name); see also 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 rights or legitimate interests do exist); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).
Respondent is not commonly known by the <wwwdeltaairlines.com> domain name. The Panel concludes Respondent has not established rights or legitimate interests in the disputed domain name pursuant to Policy ¶4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where respondent was not commonly known by the mark and never applied for a license or permission from complainant to use the trademarked name); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use); see also Hartford Fire Ins. Co. v. Webdeal.com, Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that respondent has no rights or legitimate interests in domain names because it is not commonly known by complainant’s marks and respondent has not used the domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use).
Respondent is using the <wwwdeltaairlines.com>
domain name to operate a website featuring commercial links to various
third-party websites, through which Respondent presumably receives referral
fees. The Panel finds that Respondent’s
use of a domain name that is confusingly similar to Complainant’s mark to
divert Internet users to third-party websites for Respondent’s own commercial
gain does not constitute a bona fide offering
of goods or services pursuant to Policy ¶4(c)(i) or a legitimate noncommercial
or fair use pursuant to Policy ¶4(c)(iii).
See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum
Dec. 31, 2002) (finding that respondent’s diversionary use of complainant’s
marks to send Internet users to a website which displayed a series of links,
some of which linked to competitors of complainant, was not a bona fide offering of goods or
services); see also Yahoo! Inc. v. Web Master, FA 127717
(Nat. Arb. Forum Nov. 27, 2002) (finding that the respondent’s use of a
confusingly similar domain name to operate a pay-per-click search engine, in
competition with the complainant, was not a bona
fide offering of goods or services); see
also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114
(D. Mass. 2002) (finding that, because the respondent's sole purpose in
selecting the domain names was to cause confusion with the complainant's
website and marks, its use of the names was not in connection with the offering
of goods or services or any other fair use).
Complainant also avers Respondent lacks rights and
legitimate interests in the <wwwdeltaairlines.com>
domain name because Respondent’s addition of the prefix “www” to
Complainant’s DELTA AIR LINES mark constitutes typosquatting. Thus, the Panel finds Respondent’s use of
the <wwwdeltaairlines.com> domain
name constitutes typosquatting, which
is evidence that Respondent lacks rights and legitimate interests pursuant to
Policy ¶4(a)(ii) . See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******,
FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that respondent’s
<wwwdinersclub.com> domain
name, a typosquatted version of complainant’s DINERS CLUB mark, was evidence in
and of itself that respondent lacks rights or legitimate interests in the
disputed domain name vis-à-vis complainant); see also Black & Decker Corp. v.
Khan, FA 137223 (Nat.
Arb. Forum Feb. 3, 2003) (finding no rights or legitimate interests where the
respondent used the typosquatted <wwwdewalt.com> domain name to divert Internet
users to a search engine webpage, and failed to respond to the complaint).
The Panel finds Policy ¶4(a)(ii) satisfied.
The Panel infers Respondent receives click-through fees for diverting Internet users to various third-party commercial websites. Respondent registered and used the disputed domain name in bad faith under Policy ¶4(b)(iv), as Respondent is using the <wwwdeltaairlines.com> domain name to intentionally attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant as to the source, sponsorship, affiliation or endorsement of its website. See H-D Michigan, Inc. v. Petersons Auto, FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website).
Respondent failed to provide full and correct information when it registered this domain name. The Panel is not aware of any city within the United States called “Beijing.” Providing false or misleading whois contact information creates a presumption of bad faith, Agent Host v. Host Dot Com Investments, AF-0343 (October 16, 2000), The Procter & Gamble Company v. Hong Gil Dong, FA0510000572962 (November 10, 2005) and Mattel, Inc. v. RanComp Ltd., FA0510000579563 (11/17/2005). This Panel elects to draw that conclusion.
The Panel finds Policy ¶4(a)(iii) 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 <wwwdeltaairlines.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Monday, November 28, 2005
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