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Generic Top Level Domain Name (gTLD) Decisions |
Delta Corporate Identity, Inc. v. Seventh
Summit Ventures
Claim Number: FA0203000106112
PARTIES
Complainant
is Delta Corporate Identity, Inc.,
Atlanta, GA (“Complainant”) represented by Paul
D. McGrady, of Ladas & Parry. Respondent is Seventh Summit Ventures, St. Johns, WEST INDIES (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <deltaair.com>,
registered with Tucows.
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.
James
A. Carmody, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum (the “Forum”)
electronically on March 26, 2002; the Forum received
a hard copy of the
Complaint on March 27, 2002.
On
March 27, 2002, Tucows confirmed by e-mail to the Forum that the domain name <deltaair.com> is registered with
Tucows and that Respondent is the current registrant of the name. Tucows has verified that Respondent is bound
by the Tucows 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 28, 2002, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting
a deadline of April 17,
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@deltaair.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 25, 2002, pursuant to Complainant’s request to have the dispute decided
by a single-member Panel, the Forum appointed James
A. Carmody, Esq., 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 <deltaair.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 August 30, 1997, 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.
Respondent’s domain name <deltaair.com> is confusingly similar to Complainant’s
DELTA and DELTA AIR LINES marks. The
domain name merely adds the generic word “air” to Complainant’s DELTA
mark. The use of a generic
suffix or word, which is descriptive of the business of the Complainant, does
not defeat a claim of confusing
similarity.
See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the
<hoylecasino.net> domain name is confusingly similar to Complainant’s
HOYLE mark, and that the addition of “casino,” a generic word describing the
type of business in which Complainant is engaged, does
not take the disputed
domain name out of the realm of confusing similarity); see also Broadcom Corp. v. Domain Depot, FA 96854
(Nat. Arb. Forum Apr. 23, 2001) (finding the <broadcomonline.com> domain
name is confusingly similar to Complainant’s
BROADCOM mark).
Additionally,
the disputed domain name is confusingly similar to Complainant’s DELTA AIR
LINES mark, because the disputed domain name
merely drops the words “lines”
from the mark. See WestJet
Air Center, Inc. v. West Jets LLC,
FA 96882 (Nat. Arb. Forum Apr. 20, 2001) (finding that the <westjets.com>
domain name is confusingly similar to Complainant’s
WEST JET AIR CENTER mark).
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 <deltaair.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 Seventh
Summit Ventures. 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). See TM Acquisition Corp. v. Carroll, FA
97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where Respondent used
the domain name, for commercial gain, to intentionally
attract users to a
direct competitor of Complainant).
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 <deltaair.com>
domain name be transferred from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: May 6, 2002
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