DECISION

America West Airlines v. Azra Khan

Claim Number:  FA0301000140626

PARTIES

Complainant is America West Airlines, Tempe, AZ, USA (“Complainant”) represented by Bruce E. Samuels, of Lewis and Roca, LLP. Respondent is Azra Khan, Rawalpidi, PAKISTAN (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <wwwamericawestvacations.com>, <americiawest.com>, <americawestvactions.com> and <americanwestairlines.com> registered with Iholdings.com, Inc. d/b/a Dotregistrar.com.

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 January 8, 2003; the Forum received a hard copy of the Complaint on January 13, 2003.

On January 22, 2003, Iholdings.com, Inc. d/b/a Dotregistrar.com confirmed by e-mail to the Forum that the domain names <wwwamericawestvacations.com>, <americiawest.com>, <americawestvactions.com> and <americanwestairlines.com> are registered with Iholdings.com, Inc. d/b/a Dotregistrar.com and that Respondent is the current registrant of the names. Iholdings.com, Inc. d/b/a Dotregistrar.com has verified that Respondent is bound by the Iholdings.com, Inc. d/b/a Dotregistrar.com 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 January 23, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 12, 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@wwwamericawestvacations.com, postmaster@americiawest.com, postmaster@americawestvactions.com and postmaster@americanwestairlines.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 February 17, 2003, 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 names be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <wwwamericawestvacations.com>, <americiawest.com>, <americawestvactions.com> and <americanwestairlines.com> domain names are confusingly similar to Complainant’s AMERICA WEST, AMERICA WEST AIRLINES and AMERICA WEST VACATIONS marks.

2. Respondent does not have any rights or legitimate interests in the <wwwamericawestvacations.com>, <americiawest.com>, <americawestvactions.com> and <americanwestairlines.com> domain names.

3. Respondent registered and used the <wwwamericawestvacations.com>, <americiawest.com>, <americawestvactions.com> and <americanwestairlines.com> domain names in bad faith.

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

FINDINGS

Complainant, America West Airlines, has offered service under its AMERICA WEST and AMERICA WEST AIRLINES marks since initiating service on August 1, 1983. In 2002, Complainant was the ninth largest commercial air carrier in the United States. Complainant holds numerous registrations with the U.S. Patent and Trademark Office (“USPTO”) reflecting the AMERICA WEST mark, and variations thereof. More specifically, Complainant holds, inter alia: USPTO Reg. No. 1,376,326 reflecting the AMERICA WEST AIRLINES mark on the Principal Register, registered on December 17, 1985; Reg. No. 1,445,610 reflecting the AMERICA WEST mark, registered on June 30, 1987; and Reg. No. 2,361,406 indicating rights in the AMERICA WEST VACATIONS mark, registered on June 27, 2000.

Complainant is a full-service airline that flies to 92 destinations across the United States, Mexico and Canada with more than 800 daily departures. Complainant has invested substantial resources in promoting the AMERICA WEST, AMERICA WEST AIRLINES and AMERICA WEST VACATIONS marks and, as a result, the marks have become well known.

Respondent, Azra Kahn, registered the <wwwamericawestvacations.com>, <americiawest.com>, <americawestvactions.com> and <americanwestairlines.com> domain names on March 2, 2002; April 11, 2002; March 2, 2002; and May 8, 2002, respectively. Complainant’s investigation of Respondent’s use of the disputed domain names indicates that when Internet users type in the domain names they are directed to <www1.vipfares.com>, a website that “specializes in online do it yourself bookings.” Respondent’s website offers flight tickets, hotel reservations and car rentals.

Complainant’s investigation of Respondent also reveals that Respondent has demonstrated a pattern of registering domain names that contain typographical errors of famous marks. More specifically, Respondent has been involved in the following disputes: Bank of Am. Corp. v. Kahn, FA 114324 (Nat. Arb. Forum July 5, 2002) (transferring <bankkofamerica.com>); Alltel Corp. v. Kahn, FA 124995 (Nat. Arb. Forum Nov. 4, 2002) (transferring <alltell.com>); and Kmart of Michigan, Inc. v. Kahn, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (transferring <bigkmart.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 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 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 and/or Confusingly Similar

Complainant has established rights in the AMERICA WEST, AMERICA WEST AIRLINES and AMERICA WEST VACATIONS marks through registration with the USPTO and subsequent continuous use of the marks in commerce.

Respondent’s <wwwamericawestvacations.com>, <americiawest.com>, <americawestvactions.com> and <americanwestairlines.com> domain names are confusingly similar to Complainant’s marks.

Respondent’s <wwwamericawestvacations.com> domain name is confusingly similar to Complainant’s AMERICA WEST VACATIONS mark because the domain name takes advantage of a common typing error Internet users make while searching the Internet. Additionally, Complaniant’s mark remains the focus of the second-level domain. See Marie Claire Album v. Geoffrey Blakely, D2002-1015 (WIPO Dec. 23, 2002) (holding that the letters "www" are not distinct in the "Internet world" and thus Respondent 's <wwwmarieclaire.com> domain name is confusingly similar to Complainant's MARIE CLAIRE trademark); 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).

Respondent’s <americiawest.com>, <americawestvactions.com> and <americanwestairlines.com> domain names are confusingly similar to Complainant’s marks because each domain name incorporates a common typing error into Complainant’s mark. The domain names’ slight deviations from Complainant’s marks fail to alter the overall impression of the marks, and therefore the alterations are inconsequential. Dow Jones & Co., Inc. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (holding that the deliberate introduction of errors or changes, such as the addition of a fourth “w” or the omission of periods or other such generic typos do not change Respondent’s infringement on a core trademark held by Complainant); 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).

Because spaces are not allowed in domain names and top-level domains (such as “.com”) are required, their absence or presence is irrelevant when conducting a Policy ¶ 4(a)(i) analysis. See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2002) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”).

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

Rights or Legitimate Interests

Respondent failed to contest Complainant’s accusations or evidence contained in its submission. Because Respondent did not submit a Response, all of Complainant’s reasonable inferences and assertions are taken as true. Therefore, Respondent’s lack of rebutting Complainant’s prima facie case implies that Respondent does not have any rights or legitimate interests in the domain names under Policy ¶ 4(a)(ii). See Vertical Solutions Mgmt., Inc. v. Webnet-Marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).

Complainant’s uncontested assertions indicate that Respondent’s disputed domain names resolve to <www1.vipfares.com>, which offers travel-related services similar to those of Complainant. Respondent is engaged in typosquatting, which is the opportunistic registration of a confusingly similar domain name in order to profit from the resulting Internet user confusion. Respondent is attempting to commercially benefit from a perceived and unauthorized affiliation with Complainant. Such use fails to establish rights or legitimate interests in the domain names under Policy ¶¶ 4(c)(i) or (iii). See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Nat. Arb. Forum Feb. 27, 2001) (finding that Respondent’s commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name); see also Chip Merch., Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were confusingly similar to Complainant’s mark and that Respondent’s use of the domain names to sell competing goods was illegitimate and not a bona fide offering of goods).

Respondent did not obtain permission or a license from Complainant to make use of the AMERICA WEST family of marks in domain names. Further, no evidence before the Panel indicates that Respondent is commonly known by the domain names. Respondent’s habitual engagement in typosquatting activities and the fame of Complainant’s marks create a presumption that Respondent does not have rights in the domain names under 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 Victoria’s Secret v. Asdak, FA 96542 (Nat. Arb. Forum Feb. 28, 2001) (finding sufficient proof that Respondent was not commonly known by a domain name confusingly similar to Complainant’s VICTORIA’S SECRET mark because of Complainant’s well-established use of the mark).

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

Registration and Use in Bad Faith

Respondent’s bad faith registration and use of the domain names is articulated by Policy ¶ 4(b)(iv). Respondent uses Complainant’s AMERICA WEST family of marks to redirect Internet users to a website that offers related goods and services – airline tickets, hotel bookings and car rentals. Respondent’s use of Complainant’s famous marks to compete with Complainant and promote competitors’ services and travel-related products causes Internet user confusion, harms the goodwill of the marks and works to dilute Complainant’s interest in the marks. Therefore, Respondent’s attempt to commercially profit from using infringing domain names constitutes bad faith registration and use under the Policy. See Kmart v. Kahn, 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 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 Policy ¶ 4(a)(iii) has been satisfied.

DECISION

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

Accordingly, it is Ordered that the <wwwamericawestvacations.com>, <americiawest.com>, <americawestvactions.com> and <americanwestairlines.com> domain names be TRANSFERRED from Respondent to Complainant.

James A. Carmody, Esq., Panelist

Dated:  February 21, 2003

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