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Generic Top Level Domain Name (gTLD) Decisions |
Delta Corporate Identity, Inc. v. Venta
a/k/a Leonard Bogucki
Claim Number: FA0203000105733
PARTIES
Complainant
is Delta Corporate Identity, Inc.,
Atlanta, GA (“Complainant”) represented by Paul
D. McGrady, of Ladas & Parry. Respondent is Venta a/k/a Leonard Bogucki, Krakow, Poland (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <deltairline.com>,
registered with eNom, 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.
The
Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on March 1, 2002; the Forum received
a hard copy of the
Complaint on March 4, 2002.
On
March 6, 2002, eNom, Inc. confirmed by e-mail to the Forum that the domain name
<deltairline.com> 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
March 7, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting
a deadline of March 27,
2002 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@deltairline.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
April 3, 2002, pursuant to Complainant’s request to have the dispute decided by
a single-member Panel, the Forum appointed the
Honorable Charles K. McCotter,
Jr. (Ret.) 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
disputed domain name <deltairline.com>
is confusingly similar to DELTA and DELTA AIR LINES, registered marks in which
Complainant holds rights.
Respondent
has no rights or legitimate interests in respect of the disputed domain name.
Respondent
registered and used the disputed domain name in bad faith.
B.
Respondent
Respondent
did not submit a Response in this proceeding.
FINDINGS
Complainant holds numerous trademarks in
DELTA and DELTA AIR LINES, registered in Argentina, Australia, Canada, Costa
Rica, France,
Guatemala, and the United States. Complainant’s licensee, Delta Air Lines, Inc. (“Delta”), serves
205 cities in the U.S. as well as 44 cities in 28 foreign countries.
Delta is the largest U.S. airline in
terms of aircraft departures and passengers enplaned and the third largest as
measured by operating
revenues and revenue passenger miles flown. According to Fortune Magazine, Delta is the
116th largest company in the world.
Delta operates a website at <delta.com>, through which it directly
markets its services to consumers.
Through Delta’s tremendous international
and online presence and the expenditure of millions of dollars in advertising,
Complainant’s
marks have obtained worldwide notoriety and fame. Complainant asserts that its marks are
famous within the meaning of U.S. and other jurisdictions’ trademark laws.
Respondent registered the disputed domain
name on July 13, 2001, and has used the domain name to redirect Internet users
to a travel
services provider who operates in competition with Delta and
<delta.com>.
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 and
draw such inferences it considers appropriate
pursuant to paragraph 14(b) 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; and
(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 demonstrated its rights
in the DELTA and DELTA AIR LINES marks through registration with the United
States Patent
and Trademark Office and the trademark registrars of other
various countries.
The disputed domain name <deltairline.com> is confusingly
similar to Complainant’s marks, as it reflects a misspelling of the DELTA AIR
LINES mark. The omission of the letters
“a” and “s” do not significantly distinguish the disputed domain name so as to
change the overall impression
of the mark.
See State Farm Mut. Auto.
Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000)
(finding that the domain name <statfarm.com> is confusingly similar to
the Complainant’s
STATE FARM mark); see also Compaq Info. Techs. Group, L.P.
v. Seocho , FA 103879 (Nat. Arb.
Forum Feb. 25, 2002) (finding that the domain name <compq.com> is
confusingly similar to Complainant’s COMPAQ mark because the omission of the
letter “a” in the domain
name does not significantly change the overall
impression of the mark).
Accordingly,
the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainant has sufficiently established
its rights to and interests in the DELTA family of marks. Because Respondent has not submitted a
Response in this matter, the Panel may presume it holds no such rights or
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).
Respondent’s use of the <deltairline.com> domain name to
direct Internet users to a website that competes with Complainant cannot be
deemed a bona fide offering of goods or
services pursuant to Policy ¶ 4(c)(i)
or noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). 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
Complainant's site to a competing website); see also Chanel, Inc. v. Cologne Zone, D2000-1809
(WIPO Feb. 22, 2001) (finding that use of a mark to sell complainant’s perfume,
as well as other brands of perfume, is
not bona fide use).
Further, there is no evidence to
suggest that Respondent is commonly known by the domain name pursuant to Policy
¶ 4(c)(ii); Respondent
is only known to this Panel as Venta a/k/a Leonard Bogucki. See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan.
23, 2001) (finding that Respondent does not have rights in a domain name when
Respondent is not known
by the mark); see also 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).
The Panel finds that Respondent has no rights or legitimate
interests in respect of the disputed domain name, and that Policy ¶ 4(a)(ii)
has thus been satisfied.
Registration and Use in Bad Faith
Complainant’s DELTA and DELTA AIR LINES
marks are famous and internationally known among the general public. Respondent’s intentional registration of a
confusingly similar domain name suggests an opportunistic attempt to trade in
bad faith
upon Complainant’s fame and goodwill. See 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”); 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”).
Respondent’s use of the disputed domain
name to provide and sell services in competition with Complainant (and/or its
licensee Delta)
demonstrates an attempt to attract, for commercial gain,
Internet users seeking Complainant’s website.
By attempting to attract users through likelihood of confusion, Respondent
has demonstrated bad faith use pursuant to Policy ¶ 4(b)(iv).
The Panel finds that Respondent
registered and used the disputed domain name in bad faith within the meaning of
the Policy, and thus,
Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three elements
required under the ICANN Policy, the Panel concludes that the requested relief
should be hereby
granted.
Accordingly, it is Ordered that the <deltairline.com> domain name be transferred
from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.),
Panelist
Dated: April 15, 2002
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