DECISION

 

Continental Airlines, Inc. v. Registrate Co.

Claim Number: FA0106000097731

 

PARTIES

Complainant is Continental Airlines, Inc., Houston, TX, USA (“Complainant”) represented by W. Scott Brown, of Vinson & Elkins, L.L.P.  Respondent is Registrate Co., Seoul, Korea (“Respondent”).

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <continentalairline.com> registered with BulkRegister.com, 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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on June 22, 2001; the Forum received a hard copy of the Complaint on June 25, 2001.

 

On June 27, 2001, BulkRegister.com confirmed by e-mail to the Forum that the domain name <continentalairline.com> is registered with BulkRegister.com, Inc. and that Respondent is the current registrant of the name.  BulkRegister.com, Inc. has verified that Respondent is bound by the BulkRegister.com, 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 June 28, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 18, 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 postmaster@continentalairline.com 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 July 24, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

The <continentalairline.com> domain name is confusingly similar to Complainant's CONTINENTAL AIRLINES trademark.

 

Respondent does not have any rights or legitimate interests with respect to the <continentalairline.com> domain name.

 

Respondent has registered and is using the <continentalairline.com> domain name in bad faith.

 

B. Respondent

No Response was received.

 

FINDINGS

1.      Complainant is the fifth largest U.S. airline.

2.      Complainant has used the mark CONTINENTAL AIRLINES in interstate commerce since 1937.

3.      Complainant is the owner of the name and mark CONTINENTAL AIRLINES and a family of related marks which are registered in the United States and other countries.

4.      On October 26, 1999, Complainant obtained registration of the CONTINENTAL AIRLINES mark on the Principal Register of the United States Patent and Trademark Office as Registration No. 2,288,901.

5.      Complainant uses the CONTINENTAL AIRLINES mark in connection with all of its businesses throughout the world.

6.      Respondent registered the <continentalairline.com> domain name on November 1, 2000.

7.      Respondent uses the <continentalairline.com> domain name to divert users to competing travel sites.

 

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.”

 

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 established it has rights in its CONTINENTAL AIRLINES mark by virtue of its various federal and international trademark registrations.  The <continentalairline.com> domain name is confusingly similar to Complainant's mark in that it merely omits the "s" at the end of Complainant's mark.  There is ample authority for the proposition that the deletion of an "s" does not defeat a claim of confusing similarity.  See, e.g., Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO

 

Sept. 5, 2000) (finding that deleting the letter “s” from the Complainant’s UNIVERSAL STUDIOS STORE mark does not change the overall impression of the mark and thus is confusingly similar to the Complainant’s mark); see also American Airlines Inc. v. Data Art Corp., FA 94908 (Nat. Arb. Forum July 11, 2000) (finding <americanairline.com> "effectively identical and certainly confusingly similar" to Complainant's registered AMERICAN AIRLINES marks).

 

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

 

Rights or Legitimate Interests

Complainant asserts that Respondent has no rights or legitimate interests in the <continentalairline.com> domain name.  Respondent has failed to dispute that assertion. There is a presumption that a Respondent has no rights or legitimate interests with respect to a disputed domain name when that Respondent fails to submit a response.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (finding that failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true).

 

Furthermore, Complainant asserts, and Respondent fails to refute, that Respondent uses the <continentalairline.com> domain name to divert users to competing vacation travel sites.  Diverting users to competitor sites does not constitute a bona fide offering of goods pursuant to Policy ¶ 4(c)(i).  See Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from the Complainant's site to a competing website).

 

Additionally, Complainant claims, and there is nothing in the record to refute, that Respondent is not commonly known by, nor is making a legitimate noncommercial or fair use of the <continentalairline.com> domain name pursuant to Policy ¶ 4(c)(ii) and 4(c)(iii).  As noted above, Respondent is currently using the <continentalairline.com> domain name to divert users to a competing travel planing site.  See Kosmea Pty Ltd. v. Krpan, D2000-0948 (WIPO Oct. 3, 2000) (finding no rights in the domain name where Respondent has an intention to divert consumers of Complainant’s products to Respondent’s site by using Complainant’s mark); 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).

 

Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

 

Registration and Use in Bad Faith

Complainant contends, and nothing in the record refutes, that Respondent was aware of Complainant's CONTINENTAL AIRLINES family of marks by virtue of its fame when Respondent first registered the <continentalairline.com> domain name and that the registration in the face of such knowledge constitutes bad faith.  See Northwest Airlines, Inc. v. Koch, FA 95688 (Nat. Arb. Forum Oct. 27, 2000) (“[T]he selection of a domain name [<northwest-airlines.com>] which entirely incorporates the name of the world’s fourth largest airline could not have been done in good faith”); see also Singapore Airlines Ltd v. P & P Servicios de Communicacion S.L., D2000-0643 (WIPO Aug. 29, 2000) (“The domain name <singaporeairlines.com> is so obviously connected with a well-known airline that its very registration and use by someone with no connection to the airline suggests opportunistic bad faith.  Indeed, it is hard to imagine a more blatant exercise in ‘cybersquatting.’”).

 

Complainant further claims that Respondent is using the disputed domain name to intentionally attract Internet users to other web sites for commercial gain by creating a likelihood of confusion with Complainant's well-known family of marks; this use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Identigene, Inc. v. Genetest Lab., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where Respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that Complainant is the source of or is sponsoring the services offered at the site); see also TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where Respondent used domain name, for commercial gain, to intentionally attract users to a direct competitor of Complainant).

 

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

 

DECISION

Having established all three elements under the ICANN Policy, the Panel concludes that the requested relief should be granted.

 

Accordingly, it is Ordered that the <continentalairline.com> domain name be transferred from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

 

Dated:  July 27, 2001