START-UP TRADEMARK OPPOSITION POLICY

DECISION

TWA Airlines LLC v. Quick International Courier

Claim Number: FA0112000102961

PARTIES

The Complainant is TWA Airlines, LLC, DFW Airport, TX, USA (“Complainant”) represented by Kay Lyn Schwartz, of Gardere Wynne Sewell, LLP.  The Respondent is Quick International Courier, Jamaica, NY, USA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <nextflightout.biz>, registered with Network Solutions, Inc..

PANEL

On February 1, 2002, pursuant to STOP Rule 6(b), the Forum appointed James P. Buchele as the single Panelist. 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.

PROCEDURAL HISTORY

Complainant has standing to file a Start-up Trademark Opposition Policy (“STOP”) Complaint, as it timely filed the required Intellectual Property (IP) Claim Form with the Registry Operator, NeuLevel.  As an IP Claimant, Complainant timely noted its intent to file a STOP Complaint against Respondent with the Registry Operator, NeuLevel and with the National Arbitration Forum (the “Forum”).

Complainant submitted a Complaint to the Forum electronically on December 14, 2001; the Forum received a hard copy of the Complaint on December 17, 2001.

On December 21, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 10, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with paragraph 2(a) of the Rules for the Start-up Trademark Opposition Policy (the “STOP Rules”).

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.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the STOP Rules.  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the STOP Policy, STOP Rules, the Forum’s STOP Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Transfer of the domain name from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The <nextflighout.biz> domain name is identical to Complainant's NEXT FLIGHT OUT mark.

Respondent has no rights or legitimate interests in the <nextflightout.biz> domain name.

Respondent registered the <nextflightout.biz> domain name in bad faith.

B. Respondent

Respondent failed to submit a Response.

FINDINGS

Complainant is one of the largest airlines in the United States.  Complainant has used the NEXT FLIGHT OUT mark since 1978.  Complainant has registered the mark with the United States Patent and Trademark Office (Reg. No. 1,131,958).  The mark is used in relation to air transportation and cargo services. 

Respondent registered the disputed domain name on November 19, 2001.  Respondent is not licensed by Complainant to use its NEXT FLIGHT OUT mark.  Complainant's investigation has not found any trademarks or service marks for NEXT FLIGHT OUT owned by Respondent.

DISCUSSION

Paragraph 15(a) of the STOP 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 STOP Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the STOP Rules.

Paragraph 4(a) of the STOP Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be transferred:

(1) the domain name is identical to a trademark or service mark in which the Complainant has rights; and

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered or is being used in bad faith.

Due to the common authority of the ICANN policy governing both the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and these STOP proceedings, the Panel will exercise its discretion to rely on relevant UDRP precedent where applicable.

Under the STOP proceedings, a STOP Complaint may only be filed when the domain name in dispute is identical to a trademark or service mark for which a Complainant has registered an Intellectual Property (IP) claim form.  Therefore, every STOP proceeding necessarily involves a disputed domain name that is identical to a trademark or service mark in which a Complainant asserts rights.  The existence of the “.biz” generic top-level domain (gTLD) in the disputed domain name is not a factor for purposes of determining that a disputed domain name is not identical to the mark in which the Complainant asserts rights.

Complainant’s Rights in the Mark

Complainant has established that it has rights in the NEXT FLIGHT OUT mark through evidence of continuous use since 1978, and service mark registration.  The <nextflightout.biz> domain name is identical to Complainant's NEXT FLIGHT OUT mark.

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

Rights or Legitimate Interests

Respondent has failed to come forward with a Response and therefore it is presumed that Respondent has not demonstrated rights or legitimate interests in the disputed domain name.  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).

Furthermore, when Respondent fails to submit a Response the Panel is permitted to make all inferences in favor of Complainant.  See 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”).

Respondent has not come forward with any evidence that owns a trademark or service mark for NEXT FLIGHT OUT.  Without evidence of a trademark or service mark belonging to Respondent the Panel cannot find that Respondent has demonstrated it has rights or legitimate interests in <nextflightout.biz> pursuant to STOP Policy ¶ 4(c)(i).  See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. & D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests under the UDRP where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any right or interest it may possess).

Due to the nature of Complainant's business and the fact that it is one of the leading airlines in the United States, it can be inferred that Respondent had knowledge of Complainant's NEXT FLIGHT OUT mark when it registered <nextflighout.biz> and that Respondent planned on attracting Complainant's customers to its domain by creating a likelihood of confusion. The intended use of a domain name identical to Complainant's mark to divert Internet users to Respondent's domain is not considered a bona fide offering of goods or services pursuant of  STOP Policy ¶ 4(c)(ii).  See Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding no rights or legitimate interests where Respondent diverted Complainant’s customers to his websites).; see also Household Int’l, Inc. v. Cyntom Enter., FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (inferring that Respondent registered the domain name <householdbank.com>, which incorporates Complainants HOUSEHOLD BANK mark, with hopes of attracting Complainant’s customers and thus finding no rights or legitimate interests).

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

Registration or Use in Bad Faith

Because Complainant is one of the largest airlines in the United States it is likely that Respondent was on notice as to the existence of Complainant's NEXT FLIGHT OUT mark when it registered <nextflightout.biz>.  Actual or constructive knowledge of a commonly known mark at the time of registration is evidence of bad faith.  See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (evidence of bad faith includes actual or constructive knowledge of commonly known mark at the time of registration); see also Victoria's Secret v. Hardin, FA 96694 (Nat Arb. Forum Mar. 31, 2001) (finding that, in light of the notoriety of Complainants' famous marks, Respondent had actual or constructive knowledge of the BODY BY VICTORIA marks at the time she registered the disputed domain name and such knowledge constitutes bad faith); see also Northwest Airlines, Inc. v. Koch, FA 95688 (Nat. Arb. Forum Oct. 27, 2000) (“the 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”)

It can be inferred that because Respondent holds no service mark or trademark rights in NEXT FLIGHT OUT, and has presented no other legitimate basis for its registration of <nextflightout.biz>, that it registered the domain name in order to prevent Complainant from reflecting it in a domain name of its own.  This type of behavior is evidence of bad faith pursuant to STOP Policy ¶ 4(b)(ii).  See Peachtree Software v. Scarponi, FA 102781 (Nat. Arb. Forum Jan. 23, 2002) (finding bad faith under STOP Policy ¶ 4(b)(ii), noting that it was reasonable to conclude Respondent registered <peachtree.biz> with the intent to prevent Complainant from reflecting its PEACHTREE mark in a corresponding domain name, given Respondent's knowledge of Complainant's mark and Respondent's lack of rights or interests in the mark).

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

DECISION

Having established all three elements required under the Start-up Trademark Opposition Policy, the Panel concludes that relief shall be hereby granted.

Accordingly, it is Ordered that the domain name <nextflightout.biz> be transferred from Respondent to Complainant and subsequent challenges under the STOP Policy against this domain name shall not be permitted.

 James P. Buchele, Panelist

Dated: February 7, 2002

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