DECISION

Northwest Airlines, Inc. v. Andrey Michailov

Claim Number:  FA0403000247976

PARTIES

Complainant is Northwest Airlines, Inc. (“Complainant”), represented by Travis L. Bachman, of Dorsey & Whitney LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402-1498.  Respondent is Andrey Michailov (“Respondent”), Lesnaya 14-11, Moscow 210141, Russia.

REGISTRAR AND DISPUTED DOMAIN NAME

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

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.

Hon. Ralph Yachnin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on March 18, 2004; the Forum received a hard copy of the Complaint on March 19, 2004.

On March 19, 2004, Enom, Inc. confirmed by e-mail to the Forum that the domain name <nwair.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has 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 March 22, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 12, 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@nwair.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 20-, 2001, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin 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 makes the following assertions:

1. Respondent’s <nwair.com> domain name is confusingly similar to Complainant’s NWA mark.

2. Respondent does not have any rights or legitimate interests in the <nwair.com> domain name.

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

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

FINDINGS

Complainant has a live service mark with the United States Patent and Trademark Office (“USPTO”) for NWA (Reg. No. 76,210,945) registered March 12, 2002. Complainant’s NWA mark is listed on the Principal Register of the USPTO and the date of first use is listed as June 13, 1943. Complainant also operates a website at the <nwa.com> domain name.

Respondent registered the <nwair.com> domain name on November 1, 2000.  The disputed domain name redirects internet traffic to <vipfares.com>, which markets airline reservations and booking airline transportation.  In addition, the “affiliates” page formerly available at <vipfares.com> states that it buys domain names and web traffic.

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 rights in the NWA mark through registration with the USPTO and continuous use in commerce.  See Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption).

The Panel finds that the <nwair.com> domain name is confusingly similar to Complainant’s NWA mark, the only difference in the concatenation of the word “air” to the mark, which does not significantly distinguish the domain name from the mark.  See Space Imaging LLC v. Brownwell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where Respondent’s domain name combines Complainant’s mark with a generic term that has an obvious relationship to Complainant’s business); see also L.L. Bean, Inc. v. ShopStarNetwork, FA 95404 (Nat. Arb. Forum Sept. 14, 2000) (finding that combining the generic word “shop” with Complainant’s registered mark “llbean” does not circumvent Complainant’s rights in the mark nor avoid the confusing similarity aspect of the ICANN Policy).

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

Rights or Legitimate Interests

Respondent has failed to produce a Response in this proceeding. Therefore, it is presumed that Respondent lacks rights and legitimate interests in the <nwair.com> 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). Furthermore, because Respondent failed to submit a Response, the Panel is permitted to make all inferences in favor of Complainant. See 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”).

Respondent is appropriating Complainant’s mark in its domain name to sell travel-related services in competition with Complainant.  This 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 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 Computerized Sec. Sys., Inc.  v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services)

The Panel finds nothing in the record, including Respondent’s WHOIS registration information, which indicates that Respondent is commonly known by the disputed domain name.  Complainant asserts that there is no relationship between it and Respondent.  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 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).

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

Registration and Use in Bad Faith

Respondent is using the <nwair.com> domain name to sell travel services.  Respondent is using a domain name that is confusingly similar to Complainant’s mark to create a likelihood of confusion, as to the source of the domain name, for commercial gain; this is sufficient to demonstrate bad faith registration and use under 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); see also AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where Respondent linked the domain name to a website that offers a number of web services similar to those offered by Complainant.)

Respondent is attempting to attract Internet surfers who are seeking to locate NWA in cyberspace.  Because Respondent is a competitor of Complainant, the Panel infers that it is appropriating the confusingly similar domain name to disrupt Complainant’s business, pursuant to Policy ¶ 4(b)(iii).  See 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); see also Clear Channel Communications, Inc. v. Beaty Enters., FA 135008 (Nat. Arb. Forum Jan. 2, 2003) (finding evidence of bad faith use and registration where Respondent and Complainant both operated in the highly regulated field of radio broadcasting and Respondent registered a domain name incorporating Complainant’s call letters).

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

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 <nwair.com> domain name be TRANSFERRED from Respondent to Complainant.

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

Dated: May 3, 2004

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