WestJet Air Center, Inc. v. West Jets LLC
Claim Number: FA0103000096882
Complainant is WestJet Air Center, Inc., Rapid City, SD, USA ("Complainant") represented by Linda M. Byrne and Gregory C. Golla, of Merchant & Gould. Respondent is James Dale West Jets LLC, Sulphur Springs, AZ, USA ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is "westjets.com" registered with Network Solutions, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.
Judge Ralph Yachnin, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on March 21, 2001; the Forum received a hard copy of the Complaint on March 22, 2001.
On March 23, 2001, Network Solutions, Inc. confirmed by e-mail to the Forum that the domain name "westjets.com" is registered with Network Solutions, Inc. and that Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. 5.0 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 23, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 12, 2001 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 firstname.lastname@example.org by e-mail.
Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.
On April 19,2000, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Judge Ralph Yachnin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 the Respondent to the Complainant.
Complainant seeks transfer of the domain name because the elements of ICANN Policy ¶ 4(a) have been established. Complainant alleges that the domain name is identical or confusingly similar to its trademark in which Complainant has long-standing rights. Complainant also alleges that Respondent has no rights or legitimate interests in respect of the domain name. Complainant additionally alleges that Respondent has registered and used the domain name in a deliberate attempt to trade off Complainant’s good will. To support these contentions, Complainant alleges that Respondent is running a confusingly similar and competing business by means of the domain name.
As previously stated, Respondent has not filed a response to the current proceedings. Pursuant to ¶ 5(e) and 14 of ICANN Rules, the Panel shall decide the dispute based upon the Complaint.
Complainant is the owner of a federal trademark registration for the trademark "WESTJET AIR CENTER" & Design, U.S. Reg. No. 1,321,268. Complainant has used the WESTJET trademark across the United States since approximately October 1, 1980. Complainant uses the WESTJET trademark in connection with transportation services, namely air charter services; and aircraft repair, maintenance and refueling services. Complainant has licensed the right to use the "WESTJET" trademark in connection with air transportation services to WestJet Airlines, Inc.
Respondent created the domain name record for "westjets.com" on December 28, 1999. Print-outs of Respondent’s website reveal that Respondent has established a business under the name WestJet Airlines Ltd. Respondent’s business offers low-cost airfares in Canada and the United States. Respondent has developed a significant website in connection with these air travel services.
Complainant sent two letters to Respondent, one on August 14, 2000 and a follow-up on October 31, 2000, demanding that Respondent cease and desist using the domain name in question.
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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.
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.
Identical and/or Confusingly Similar
Complainant has had exclusive rights to use the mark "WESTJET" for air transportation services and related services for over twenty years.
Respondent registered the domain name "westjets.com." This domain name differs from Complainant’s WESTJET AIR CENTER mark by deleting the words "air" and "center" and adding the ".com" suffix at the end. UDRP Panels have held that a domain name that is composed by deleting one or more words from Complainant’s trademark and adding a top level suffix meets the confusing similarity test set forth under Policy ¶ 4(a)(i). Asprey & Garrard Ltd v. Canlan Computing, D2000-1262 (WIPO Nov. 14, 2000) (finding that the domain name <asprey.com> is confusingly similar to the Complainant’s "Asprey & Garrard" and "Miss Asprey" marks); Wellness Int’l Network, LTD v. Apostolics.com, FA 96189 (Nat. Arb. Forum Jan. 16, 2001) (finding that the domain name <wellness-international.com> is confusingly similar to Complainant’s "Wellness International Network").
Thus, the Panel concludes that the domain name is confusingly similar to a mark in which Complainant has rights.
Rights or Legitimate Interests
Respondent created the domain name record for "westjets.com" on December 28, 1999, long after Complainant had established significant fame and use in its mark "WESTJET" for use in connection with its services. Upon information and belief, Respondent is not commonly known by the domain name given its recent registration of the domain name and Complainant’s long time use of the WESTJET mark. Policy ¶ 4(c)(ii).
Further, Respondent’s use of the confusingly similar domain name in connection with competing air travel services constitutes infringement of Complainant’s rights, and thus Respondent cannot claim a bona fide use of the domain name under Policy ¶ 4(c)(i). UDRP precedent is consistent with this line of reasoning. America Online, Inc. v. Xianfeng Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that "[I]t would be unconscionable to find a bona fide offering of services in a respondent’s operation of web-site using a domain name which is confusingly similar to the complainant’s mark and for the same business); North Coast Medical, Inc. v. Allegro Medical, FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no bona fide use where Respondent used the domain name to divert Internet users to its competing website).
As detailed above, it appears that Respondent is using the domain name in connection with a for-profit business. Thus Respondent also cannot prove legitimate interests in the domain name under Policy ¶ 4(c)(iii), which requires non-commercial or fair use of the domain name.
As such, the Panel concludes that Respondent has no rights or legitimate interests in the domain name.
Registration and Use in Bad Faith
Respondent is using the domain name in connection with a website that offers confusingly similar and competing services. The Panel is convinced that Respondent did not happen by chance on the WESTJET domain name for use in connection with air travel services. Respondent is using the established WESTJET mark and in hopes of attracting Internet users that are actually seeking Complainant’s website. Such use of a domain name is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where Respondent linked <drmath.com>, which contains Complainant’s Dr. Math mark, to a website run by the Respondent, creating confusion for Internet users regarding the endorsement, sponsorship, of affiliation of the website).
As such, the Panel concludes that Respondent has registered and is using the domain name in bad faith.
Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.
Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "westjets.com" be transferred from the Respondent to the Complainant.
Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: April 20, 2001
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