DECISION

America West Airlines v. Travel Reservations Network

Claim Number:  FA0302000146222

PARTIES

Complainant is America West Airlines, Tempe, AZ (“Complainant”) represented by Bruce E. Samuels, of Lewis and Roca LLP. Respondent is Travel Reservations Network, Laredo, TX (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain name at issue is <america-west-airlines.com> and

<america-west-airline.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.Com.

PANEL

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

Tyrus R. Atkinson, Jr., as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on February 18, 2003; the Forum received a hard copy of the Complaint on February 20, 2003.

On February 19, 2003, Intercosmos Media Group, Inc. d/b/a Directnic.Com confirmed by e-mail to the Forum that the domain names <america-west-airlines.com> and <america-west-airline.com> are registered with Intercosmos Media Group, Inc. d/b/a Directnic.Com and that Respondent is the current registrant of the names. Intercosmos Media Group, Inc. d/b/a Directnic.Com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.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 February 24, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 17, 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@america-west-airlines.com, and postmaster@america-west-airline.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 March 21, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Tyrus R. Atkinson, Jr., 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 <america-west-airlines.com> and

<america-west-airline.com> domain names are confusingly similar to Complainant’s AMERICA WEST and AMERICA WEST AIRLINES marks.

2. Respondent does not have any rights or legitimate interests in the

<america-west-airlines.com> and <america-west-airline.com> domain names.

3. Respondent registered and used the <america-west-airlines.com> and <america-west-airline.com> domain names in bad faith.

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

FINDINGS

Complainant holds trademark registrations for AMERICA WEST ARILINES (Reg. No. 1,376,326) and AMERICA WEST (Reg. No. 1,145,610) with the United States Patent and Trademark Office.  Complainant has used the marks in commerce in relation to its air carrier service since 1983.  Complainant is currently the ninth largest airline in the United States.  Complainant’s service includes ninety-two destinations across the United States, Mexico and Canada with over 800 daily departures.  Complainant operates its main website at <americawest.com>.  Complainant uses the website to sell tickets as well as to book hotels, car rentals and vacation packages.

Respondent registered the <america-west-airlines.com> and <america-west-airline.com> domain names on August 19, 2000.  Respondent is using the disputed domain names to divert Internet users to a commercial website“America West Airline-Fares Flights and Schedules,”  which sells airline tickets and trip packages.

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 that it has rights in the AMERICA WEST and AMERICA WEST AIRLINES marks through registration with the United States Patent and Trademark Office.

Respondent’s <america-west-airlines.com> domain name is identical to Complainant’s AMERICA WEST AIRLINES and AMERICA WEST marks because it incorporates the entirety of Complainant’s marks and merely adds hyphens to separate the words.  The addition of a hyphen does not add any distinct characteristics capable of overcoming a claim of confusing similarity.  See Chernow Communications Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"); see also Nintendo Of Am. Inc. v. This Domain Is For Sale, D2000-1197 (WIPO Nov. 1, 2000) (finding <game-boy.com> identical and confusingly similar tothe Complainant’s GAME BOY mark, even though the domain name is a combination of two descriptive words divided by a hyphen).

Respondent’s <america-west-airline.com> domain name is confusingly similar to Complainant’s AMERICA WEST AIRLINES and AMERICA WEST marks because it incorporates the entirety of Complainant’s marks and merely omits the “s” at the end of AIRLINES.  The omission of an “s” does not create a distinct domain name.  Moreover, the addition of hyphens in between the words of the domain name does not add any distinct features capable of overcoming Policy ¶ 4(a)(i) analysis.  See Universal City Studios, Inc. v. HarperStephens, D2000-0716 (WIPO Sept. 5, 2000) (finding that deleting the letter “s” from the Complainant’s UNIVERSAL STUDIOS STORE mark did not change the overall impression of the mark and thus made the disputed domain name confusingly similar to it); see also Easyjet Airline Co. Ltd. v. Harding, D2000-0398 (WIPO June 22, 2000) (finding it obvious that the domain name <easy-jet.net> was virtually identical to Complainant's EASYJET mark and therefore that they are confusingly similar).

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

Rights or Legitimate Interests

Respondent has failed to submit a Response in this proceeding.  Thus, the Panel is permitted to accept 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) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also 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”).

Moreover, Respondent has failed to invoke any circumstances that could demonstrate rights and legitimate interests in the domain name.  When Complainant asserts a prima facie case against Respondent, the burden of proof shifts to Respondent to show that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the Respondent has failed to invoke any circumstance that could demonstrate any rights or legitimate interests in the domain name).

Respondent is using the identical and confusingly similar domain names, <america-west-airlines.com> and <america-west-airline.com>, to divert Internet users to a commercial website that competes with Complainant’s services.  This type of use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See Big Dog Holdings, Inc. v. Day, FA 93554 (Nat. Arb. Forum Mar. 9, 2000) (finding no legitimate use when Respondent was diverting consumers to its own website by using Complainant’s trademarks); see also N. Coast Med., Inc. v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no bona fide use where Respondent used the domain name to divert Internet users to its competing website).

There is no evidence on record that Respondent is commonly known as AMERICA WEST AIRLINE, AMERICA WEST AIRLINES, <america-west-airline.com> or <america-west-airlines.com>.  Respondent is only known to the Panel as “Travel Reservations Network.”  Thus, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also 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).

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

Registration and Use in Bad Faith

The <america-west-airline.com> or <america-west-airlines.com> domain names lead to a website entitled “America West Airline-Fares Flights and Schedules,” which offers services identical to those available on Complainant’s <americawest.com> website.  Respondent is using the two confusingly similar domain names to divert Internet users to a website that competes with Complainant’s services.  This behavior is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii) because it is a disruption of Complainant’s business.  See Lubbock Radio Paging v. Venture Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23, 2000) (concluding that domain names were registered and used in bad faith where Respondent and Complainant were in the same line of business in the same market area); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant’s business).

Respondent is using the disputed domain names to divert Internet users to Respondent’s own website for Respondent’s commercial gain.  The use of domain names confusingly similar to Complainant’s marks for commercial gain evidences bad faith registration and use.  See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb. Forum Nov. 21, 2002) (finding that Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because Respondent was using the confusingly similar domain name to attract Internet users to its commercial website); see also 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)).

Thus, 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 <america-west-airlines.com> and

<america-west-airline.com> domain name be TRANSFERRED from Respondent to Complainant.

Tyrus R. Atkinson, Jr., Panelist

Dated:  March 26, 2003

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