DECISION

America West Airlines v. Amjad Kausar

Claim Number: FA0311000208575

PARTIES

Complainant is America West Airlines (“Complainant”) represented by Christy Hubbard of Lewis and Roca LLP, 40 N. Central Avenue, Phoenix, AZ 85004. Respondent is Amjad Kausar, P.O. Box 5706, Karachi, Pakistan 74000 (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wwwamericawest.com> registered with Enom, Inc.

PANEL

The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding.

Hon. Carolyn Marks Johnson sits as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically November 3, 2003; the Forum received a hard copy of the Complaint November 6, 2003.

On November 12, 2003, Enom, Inc. confirmed by e-mail to the Forum that the domain name <wwwamericawest.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. 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 November 12, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 2, 2003, 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@wwwamericawest.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 December 10, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn Marks Johnson as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum 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 makes the following assertions:

1. The domain name registered by Respondent, <wwwamericawest.com>, is confusingly similar to Complainant’s AMERICA WEST mark.

2. Respondent has no rights to or legitimate interests in the <wwwamericawest.com> domain name.

3. Respondent registered and used the <wwwamericawest.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Since 1983, Complainant has offered air transportation services under its marks. Complainant produced extrinsic evidence in this proceeding that Complainant owns a number of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the AMERICA WEST mark, including Reg. No. 1,445,610 (registered on June 30, 1987) related to air passenger, package, correspondence and cargo transportation services.

Respondent registered the <wwwamericawest.com> domain name September 27, 2000. Respondent is using the disputed domain name to redirect Internet traffic to websites that sell gambling and travel services.

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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and will draw such inferences as the Panel considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) 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 to and/or Confusingly Similar

Complainant demonstrated by extrinsic proof in this proceeding that it has rights in the AMERICA WEST mark through trademark registration with the USPTO and by use in commerce.

Complainant contends that the domain name registered by Respondent, <wwwamericawest.com>, is confusingly similar to Complainant’s AMERICA WEST mark because the disputed domain name incorporates the entire mark and merely adds the letters “www” to the beginning of the mark. Addition of these letters does not significantly distinguish the domain name pursuant to Policy ¶ 4(a)(i) because the <wwwamericawest.com> domain name capitalizes on a common Internet-user typographical error: omission of the period before the second-level domain. See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Dana Corp. v. $$$ This Domain Name Is For Sale $$$, FA 117328 (Nat. Arb. Forum Nov. 19, 2002) (finding Respondent's <wwwdana.com> domain name confusingly similar to Complainant's registered DANA mark because Complainant's mark remains the dominant feature).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights to or Legitimate Interests

Respondent failed to submit a Response in this proceeding. Therefore, the Panel accepts all reasonable allegations and inferences in the Complaint as true. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).

Furthermore, based on Respondent’s failure to respond, the Panel presumes Respondent lacks all rights to and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). 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 Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed).

Respondent is using the <wwwamericawest.com> domain name to redirect Internet traffic to websites that sell gambling and travel services. Respondent’s use does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Imation Corp. v. Streut, FA 125759 (Nat. Arb. Forum Nov. 8, 2002) (finding no rights or legitimate interest where Respondent used the disputed domain name to redirect Internet users to an online casino); see also Oly Holigan, L.P. v. Private, FA 95940 (Nat. Arb. Forum Dec. 4, 2000) (finding no rights or legitimate interest in a misspelled domain name as Respondent was merely using it to redirect Internet users to, inter alia, an online casino); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that Respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with Complainant, was not a bona fide offering of goods or services).

Moreover, Respondent provided no evidence and nothing in the record suggests that Respondent is commonly known by WWW AMERICA WEST or by the domain name <wwwamericawest.com>. Thus, the Panel finds that Respondent failed to demonstrate any rights to or legitimate interersts in the disputed domain name in accord with Policy ¶ 4(c)(ii). 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 RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").

Accordingly, the Panel finds that Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent’s use of a domain name confusingly similar to Complainant’s AMERICA WEST mark to offer gambling and travel services for sale establishes that Respondent registered and used the <wwwamericawest.com> domain name in bad faith in an attempt to attract Internet users to Respondent’s websites for commercial gain by creating a likelihood of confusion with Complainant’s mark. See Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)); see also State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where Respondent registered the domain name <bigtex.net> to infringe on Complainant’s goodwill and attract Internet users to Respondent’s website).

Moreover, by registering a domain name that capitalizes on Internet-user error to redirect users to Respondent’s commercial websites, Respondent is engaging in a practice called “typosquatting.” Typosquatting itself demonstrates registration and use of a domain name in bad faith under Policy ¶ 4(a)(iii). See Black & Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3, 2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare those individuals who forget to type the period after the ‘www’ portion of [a] web-address,” evidence that the domain name was registered and used in bad faith); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“in typosquatting cases, such as this one, it would be difficult for Respondent to prove to the Panel that it did not have actual knowledge of Complainant’s distinctive MEDLINE mark when it registered the infringing <wwwmedline.com> domain name”).

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

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

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

Hon. Carolyn Marks Johnson, Panelist

Dated: December 22, 2003

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