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Generic Top Level Domain Name (gTLD) Decisions |
America West Airlines c/o
Darrel S. Jackson v. Chen
Huang
Claim
Number: FA0312000222039
Complainant is America West Airlines c/o Darrel S. Jackson (“Complainant”), represented by Christy Hubbard, of Lewis and Roca 40
N. Central Avenue, Phoenix, AZ 85004.
Respondent is Chen Huang (“Respondent”),
P.O. Box 20231, Zengdu, Guangzhou 34264, China, 65487.
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <americawesttairlines.com>, registered
with iHoldings.com, Inc. d/b/a dotregistrar.com.
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.
John
J. Upchurch as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on December 26, 2003; the
Forum received a hard copy of the
Complaint on December 29, 2003.
On
December 29, 2003, iHoldings.com, Inc. d/b/a dotregistrar.com confirmed by
e-mail to the Forum that the domain name <americawesttairlines.com>
is registered with iHoldings.com, Inc. d/b/a dotregistrar.com and that
Respondent is the current registrant of the name. 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
December 31, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"),
setting
a deadline of January 20, 2004 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@americawesttairlines.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
January 27, 2004, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the Forum appointed John
J. Upchurch 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.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <americawesttairlines.com>
domain name is confusingly similar to Complainant’s AMERICA WEST AIRLINES mark.
2. Respondent does not have any rights or
legitimate interests in the <americawesttairlines.com> domain
name.
3. Respondent registered and used the <americawesttairlines.com>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant
offers air transportation services. It
holds various registrations under the AMERICA WEST and AMERICA WEST AIRLINES
marks (AMERICA WEST: Reg. No. 1,445,610; AMERICA WEST
AIRLINES; Reg. Nos.
2,065,046, 1,376,326, 2,081,265).
Complainant registered the AMERICA WEST mark on June 30, 1987, and
registered the AMERICA WEST AIRLINES marks on May 27, 1997, December
17, 1985,
and July 22, 1997, respectively, with the United States Patent and Trademark
Office (“USPTO”). Complainant also
holds the registration for the <americawest.com> and <americawestairlines.com>.
Respondent
registered the <americawesttairlines.com> on October 11,
2003. The domain name offers links to
travel planning services.
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.
Complainant
has rights in the AMERICA WEST and AMERICA WEST AIRLINES marks. Complainant has held trademark registrations
with the USPTO for the AMERICA WEST and AMERICA WEST AIRLINES marks since 1987.
Respondent’s
<americawesttairlines.com> domain name is confusingly similar to
Complainant’s AMERICA WEST AIRLINES mark.
The only difference is the addition of a “t” to the domain name. A domain name that adds a letter to a mark
does not significantly distinguish the domain name from the mark pursuant to
Policy ¶ 4(a)(i). See Reuters Ltd. v. Global Net 2000, Inc.,
D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by
only one letter from a trademark has a greater tendency
to be confusingly
similar to the trademark where the trademark is highly distinctive); see
also Victoria’s Secret v. Zuccarini,
FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words
and adding letters to words, a Respondent does not
create a distinct mark and
renders the domain name confusingly similar to Complainant’s marks).
Accordingly,
the Panel finds that the <americanwesttairlines.com> domain name
is confusingly similar to Complainant’s AMERICA WEST AIRLINES mark under Policy
¶ 4(a)(i).
In light of
Respondent’s failure to respond to this Complaint, the Panel accepts all
reasonable allegations to be true. See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002)
(holding that where Complainant has asserted that Respondent has no rights or
legitimate
interests with respect to the domain name it is incumbent on
Respondent to come forward with concrete evidence rebutting this assertion
because this information is “uniquely within the knowledge and control of the
respondent”); see also Woolworths
plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that absent
evidence of preparation to use the domain name for a legitimate purpose, the
burden of proof lies with Respondent to demonstrate that it has rights or
legitimate interests).
Respondent’s
domain name is confusingly similar to Complainant’s mark. Respondent is not licensed to use this mark,
nor is this use fair within the meaning of the Policy. Respondent’s use of the domain name to offer
links to travel planning services in competition with Complainant is not a bona
fide
offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use of the domain name pursuant
to Policy ¶
4(c)(iii). See Avery Dennison Corp.
v. Steele d/b/a Mercian Labels Ltd. and selfadhesivelabels.com, FA 133626
(Nat. Arb. Forum Jan. 10, 2003) (finding that Respondent had no rights or
legitimate interests in the disputed domain
name where it used Complainant’s
mark, without authorization, to attract Internet users to its business, which
competed with Complainant);
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).
Respondent is
not commonly known as AMERICA WEST AIRLINES under Policy ¶ 4(c)(ii). See Tercent Inc. v. 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 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 Policy ¶ 4(a)(ii) has been satisfied.
Respondent has
registered and used the <americawesttairlines.com> domain name to
create a likelihood of confusion with Complainant’s AMERICA WEST AIRLINES mark
for commercial gain. Internet users who
go to the domain can access links to travel planning services that compete with
Complainant. Additionally, because the
Respondent’s website offers the Complainant’s services and products, the Panel
can infer that Respondent
had notice of Complainant’s right in the mark. Respondent has registered and used the
disputed domain name in bad faith according to Policy ¶ 4(b)(iv). 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
Computerized Sec. Sys., Inc. d/b/a SAFLOK v. Hu, FA 157321
(Nat. Arb. Forum June 23, 2003) (finding that Respondent’s use of the
<saflock.com> domain name to offer goods competing
with Complainant’s illustrates
Respondent’s bad faith registration and use of the domain name, evidence of bad
faith registration
and use pursuant to Policy 4(b)(iv)); see also America Online, Inc. v. Fu, D2000-1374
(WIPO Dec. 11, 2000) (finding that Respondent intentionally attempted to
attract Internet users to his website for commercial
gain by creating a
likelihood of confusion with Complainant’s mark and offering the same chat
services via his website as Complainant).
In addition,
Respondent appropriated Complainant’s mark in the disputed domain name to sell
products and services that compete with
the Complainant. This disruption of Complainant’s business is
bad faith registration and use, pursuant to Policy ¶ 4(b)(iii). See Surface Protection Indus., Inc. v. Webposters, D2000-1613 (WIPO
Feb. 5, 2001) (finding that, given the competitive relationship between
Complainant and Respondent, Respondent
likely registered the contested domain
name with the intent to disrupt Complainant's business and create user
confusion); see also General Media
Communications, Inc. v. Vine Ent., FA 96554 (Nat. Arb. Forum Mar. 26, 2001)
(finding bad faith where a competitor of Complainant registered and used a
domain name
confusingly similar to Complainant’s PENTHOUSE mark to host a
pornographic web site).
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <americawesttairlines.com> domain name be TRANSFERRED
from Respondent to Complainant.
John
J. Upchurch, Panelist
Dated: February 10, 2004
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