Olympic Airlines v. MC&I, Inc. c/o George
Trivizas
Claim Number: FA0602000649690
PARTIES
Complainant is Olympic Airlines (“Complainant”), represented by James G. Ehrig, of Condon & Forsyth
LLP, 1016 Sixteenth Street, NW, Suite 700, Washington, DC 20036. Respondent is MC&I, Inc. c/o George Trivizas (“Respondent”),
represented by Herrick Nikas,
555 Anton Blvd., 12th floor,
Costa Mesa, CA 92626.
The domain name at issue is <olympicair.com>,
registered with Enom, Inc.
PANEL
Each of 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.
Carol Stoner, Dennis A. Foster and Mark McCormick as Panelists.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on February 22, 2006; the National Arbitration Forum received a
hard copy of the Complaint on February 23, 2006.
On February 23, 2006, Enom, Inc. confirmed by e-mail to the National
Arbitration Forum that the <olympicair.com>
domain name is registered with Enom, Inc. and that the 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 March 3, 2006, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of March 23, 2006 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@olympicair.com by e-mail.
Having received no Response from
Respondent, the National Arbitration Forum transmitted to the parties a
Notification of Respondent Default.
On March 31, 2006, pursuant to Complainant’s
request to have the dispute decided by a three-member Panel, the National
Arbitration Forum appointed Carol Stoner, Dennis A. Foster and Mark McCormick as
Panelists.
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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends that it has established common law rights in the
OLYMPIC AIRLINES mark, having used the name for many years in its business in
the field of air transportation and travel services. Complainant asserts that Respondent’s <olympicair.com> domain name is confusingly similar to the
OLYMPIC AIRLINES mark because it incorporates the dominant features of
Complainant’s mark except for abbreviating the term “airlines” to “air” and
except for adding the top-level domain “.com.”
Complainant contends that Respondent has no rights or legitimate
interests in using the <olympicair.com>
domain name because Respondent has not commonly been known by the mark and
never applied for permission from Complainant to use it. In addition, Complainant contends that
Respondent is using the <olympicair.com>
domain name to redirect internet users interested in Olympic Airlines’ services
to Respondent’s website which features air transportation and travel services
that compete with those of Complainant.
Complainant contends that Respondent’s use of the <olympicair.com> domain name is in bad faith because
Respondent is using the confusingly similar mark to attract Internet users to
Respondent’s website for commercial gain in connection with its competing
services.
B. Respondent
Respondent made no response.
C. Additional Submissions
None.
FINDINGS
Complainant, which is headquartered in
Greece, was founded in 1930, started using the name Olympic Airways in 1958 and
then subsequently used the name Olympic Airlines. It maintains a website under the domain name <olympicairlines.com> which is used
in connection with its offering of air transportation and travel services. Respondent is using the disputed domain name
<olympicair.com> in apparently
acting as a local travel agency selling tours and accommodations in
Greece. Respondent is not an agent for
Olympic Airlines nor has Respondent been licensed to use the Olympic Airlines’
mark. Respondent asserts on the <olympicair.com> website that it
is a reservation agent for Olympic Airlines and uses a picture of the Olympic
Airlines’ aircraft on its web page. The
Panel finds that Respondent is using the <olympicair.com>
domain name in an effort to divert Internet users looking for Olympic Airlines’
website to the <olympicair.com>
website in order for Respondent to market its competing travel services for
commercial gain.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a trademark
or service mark in which the Complainant has rights;
(2)
the 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 was founded in 1930; commenced using the name Olympic Airways in 1958 and then subsequently became known as Olympic Airlines. The OLYMPIC AIRLINES and <olympicairlines.com> service marks are well established in connection with air transportation and travel services. Olympic Airlines is headquartered in Athens, Greece and is the flag-carrier of Greece employing approximately 1,850 people. Olympic Airlines operates a network of thirteen intercontinental destinations, twenty-eight European destinations and thirty-six domestic Greek destinations. Complainant makes prominent use of its service marks as exemplified through its use on Complainants’ website, <olympicairlines.com>.
Complainant has established common law rights in the OLYMPIC AIRLINES mark dating back to 1930. The Panel finds that under Policy ¶ 4(a)(i), a complainant need not hold a registered trademark to establish rights in a mark. Complainant has common law rights in the mark, because the mark has acquired secondary meaning as a source indicator for Complainant’s business in the field of air transportation and travel services. Thus, the Panel finds that Complainant has provided sufficient evidence of secondary meaning associated with the mark and, therefore, concludes that Complainant has established common law rights sufficient to satisfy Policy ¶ 4(a)(ii). See McCarthy on Trademarks & Unfair Competition, § 25:74.2 (4th ed. 2002) (stating that the ICANN dispute resolution policy is “broad in scope” in that “the reference to a trademark or service mark ‘in which the complainant has rights’ means that ownership of a registered mark is not required–unregistered or common law trademark or service mark rights will suffice” to support a domain name complaint under the Policy); see also British Broad. Corp. v. Renteria, D2000-0050 (WIPO Mar. 23, 2000) (noting that the Policy “does not distinguish between registered and unregistered trademarks and service marks in the context of abusive registration of domain names” and applying the Policy to “unregistered trademarks and service marks”); see also Keppel TatLee Bank v. Taylor, D2001-0168 (WIPO Mar. 28, 2001) (“[O]n account of long and substantial use of the said name [<keppelbank.com>] in connection with its banking business, it has acquired rights under the common law); see also Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established).
Complainant has a common law trademark in its OLYMPIC AIRLINES name. Respondent’s <olympicair.com> domain name is confusingly similar to the OLYMPIC AIRLINES mark and its domain name <olympicairlines.com>. This similarity is sufficient to establish that Respondent’s domain name is confusingly similar to Complainant’s mark and domain name pursuant to ICANN Policy ¶ 4(a)(i). The abbreviation of airlines to “air” and the addition of the top-level domain “.com” do not negate the confusingly similar aspects of Respondent’s domain name. See Modern Props, Inc. v. Wallis, FA 152458 (Nat. Arb. Forum June 2, 2003) and Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003).
Complainant has also carried its burden to
establish that Respondent has no rights or legitimate interests in using the
domain name <olympicair.com>,
within the meaning of ICANN Policy ¶ 4(a)(ii).
No evidence exists that Respondent is commonly known by the <olympicair.com> domain
name. Because Respondent made no
response, he has not met his obligation to come forward with evidence to rebut
Complainant’s contention that he has no rights or legitimate interests in the
disputed domain name. See G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002). Complainant has established that Respondent’s use of a domain
name that is confusingly similar to Complainant’s OLYMPIC AIRLINES mark is not a use in connection with a bona
fide offering of goods or services.
Respondent is using the disputed domain name to divert Internet users
interested in Complainant’s services to Respondent’s website. See DLJ Long Term Inv. Corp. v.
BargainDomainNames.com, FA 104580 (Nat.
Arb. Forum Apr. 9, 2002).
Complainant has also met its burden to
establish that the Respondent’s use of the <olympicair.com>
domain name is in bad faith within the meaning of Policy ¶ 4(a)(iii). Respondent is using the domain name for
commercial gain by taking advantage of the confusing similarity to
Complainant’s mark to attract Internet users to Respondent’s website in an
effort to market Respondent’s travel services.
See G.D. Searle
& Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21,
2002). By thus using the disputed
domain name to attract Internet users to Respondent’s website that competes with
Complainant’s business, Respondent has acted in bad faith. See S.
Exposure v. S. Exposure, Inc., FA 94864 (Nat.
Arb. Forum July 18, 2000).
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 <olympicair.com>
domain name be TRANSFERRED from Respondent to Complainant.
Mark McCormick, Chair
Carol Stoner and Dennis A. Foster,
Panelists
Dated:
April 14, 2006
NATIONAL ARBITRATION FORUM
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