[Indexed as: American Airlines v. Data Art Corporation]
[Indexed as: AMERICANAIRLINE.COM]
National Arbitration Forum
Administrative Panel Decision
Forum File FA0005000094908
Commenced: 5 June 2000
Judgment: 11 July 2000
Presiding Panelist: Hon. Carolyn Marks Johnson
Domain name - Domain name dispute resolution policy - U.S. Trademark - Identical - Confusingly similar - Legitimate use - Legitimate interest - Bad faith registration - Bad faith use.
Complainant owns numerous registered trademarks that consist of the words American Airlines. One of these trademark registrations dates back as early as 1934. Respondent registered the domain name, AMERICANAIRLINE.COM in 1997.
Held, Name Transferred to Complainant.
The domain name in question is effectively identical and certainly confusingly similar to the Complainants registered and well-known trademarks.
Respondent is not using the domain name in connection with a bona fide offering of goods and services. Respondent is not even utilizing the site in connection with air transportation related services. Instead, as evidence submitted by the Complainant proves, the Respondent is attempting to divert air travellers to another unrelated site. This willful attempt to attract users to an alternative site is evidence of bad faith.
Policies referred to
Uniform Domain Name Dispute Resolution Policy, adopted August 26, 1999
Cases referred to
Hewlett-Packard Company v. Full System, FA94637 (Nat. Arb. Forum, May
22, 2000)
Nabisco Brands v. The Patron Group, Inc., D2000-0032 (WIPO
Feb. 23, 2000)
Marriott International v. Café au lait, FA93670 (Nat. Arb. Forum,
Mar. 13, 2000)
Panel Decision referred to
Marks Johnson, Panelist:-
The domain name at issue is AMERICANAIRLINE.COM, registered with
Network Solutions, Inc (NSI).
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
("The
Forum") electronically on 05/26/2000; The Forum received a hard copy
of the
Complaint on 05/26/2000.
On 06/05/2000, NSI confirmed by e?mail to The Forum that the domain
name
AMERICANAIRLINE.COM is registered with NSI and that the Respondent
is
the current registrant of the name. NSI has verified that Respondent
is bound by
the Network Solutions Service Agreement Version 4.0 and has thereby
agreed to
resolve domain?name disputes brought by third parties in accordance
with
ICANNs UDRP.
On 06/05/2000, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
06/26/2000
by which Respondent could file a Response to the Complaint, was transmitted
to
Respondent via email, post and fax, and to all entities and persons
listed on
Respondents registration as technical, administrative and billing
contacts by email.
On 06/26/2000, 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 06/27/2000, pursuant to Complainants request to have the dispute
decided by
a Single Member panel, The Forum appointed Honorable Carolyn Marks
Johnson
as Panelist(s).
Having reviewed the communications records in the case file, the Administrative
Panel (the "Panel") finds that The Forum has discharged its responsibility
under
Paragraph 2(a) of the Uniform 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 Forums Supplemental Rules and any rules
and principles of law that the panel deems applicable, without the
benefit of any
Response from the Respondent.
RELIEF SOUGHT
The Complainant requests that the domain name be transferred from the
Respondent to the Complainant.
PARTIES CONTENTIONS
A. Complainant
The Complainant contends that the Respondent has registered a domain
name that
is identical to and confusingly similar to its marks registered for
and in use by the
Complainant. Further, the Complainant contends that the Respondent
has no rights
or legitimate interests to the domain name, and that the respondent
has registered
and is using the domain name in bad faith.
B. Respondent
The Respondent submitted no response in this matter.
FINDINGS
The Complainant owns numerous registered trademarks that consist of
the words
American Airlines. One of these trademark registrations dates
back as early as
1934.
The Respondent registered the domain name AMERICANAIRLINE.COM on
08/11/1997.
When the Respondents website is accessed, the user is linked to a third
party site,
www.mail.com, offering email solutions for corporations, ISPs, and
advertisers.
On 09/03/1999, the Complainant sent the Respondent correspondence requesting
that the Respondent cancel the name and cease infringing on the Complainants
trademarks.
DISCUSSION
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy (Policy)
directs that the complainant must prove each of the following three
elements to
support a claim that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly
similar
to a trademark or service mark in which the Complainant has rights;
(2) the 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.
The Complainant has offered exhibits in support of its claims, whereas
the
Respondent has submitted no response in the matter. The Respondents
failure to
dispute the allegations of the Complainant permits the inference that
the
Complainants allegations are true. Further, the Respondents
failure to respond
permits the inference that the Respondent knows that its website is
misleading and
is intentionally diverting business from the Complainant. See
Hewlett?Packard
Company v. Full System, FA 94637 (Nat. Arb. Forum May 22, 2000).
Applying the Policy to the issue in this case furthers these inferences.
Identical and/or Confusingly Similar
The domain name in question is effectively identical and certainly confusingly
similar
to the Complainants registered and well?known trademarks.
Rights or Legitimate Interests
The Respondent does not assert any rights or legitimate interests to
the domain
name in question.
The name does not reflect a name that the Respondent is commonly known
by.
Policy 4(c)(ii). Furthermore, the Respondent is not using
the domain name in
connection with a bona fide offering of goods and services. The
Respondent is not
even utilizing the site in connection with air transportation related
services. The
Respondent is not making a legitimate use of the domain name; instead,
it is trying
to divert air travelers to another unrelated site. See Nabisco
Brands v. The
Patron Group, Inc., D2000?0032 (WIPO Feb. 23, 2000).
Bad Faith
The Respondent does not deny that its actions were taken in bad faith.
Intentionally trying to divert Internet users to alternative sites is
evidence of bad
faith. Policy 4(b)(iv). The Respondents continuing
use of the site, with
knowledge that he had no right to use the Complainants mark, reveals
a willful
attempt to attract users to an alternative site and cause confusion
with the
Complainants mark. Policy 4(b)(iv). See Marriott
Intl v. Café au lait, FA
93670, (Nat. Arb. Forum March 13, 2000).
Based on the preceding argument, the panel finds that the Respondent
registered
and is using the domain name in bad faith.
DECISION
Having established all three elements required by the ICANN Policy Rule
4(a), it is
the decision of the panelist that the requested relief be granted.
Accordingly, for all
of the foregoing reasons, it is ordered that the domain name,
AMERICANAIRLINE.COM, be transferred from the Respondent to the
Complainant.
Honorable Carolyn Marks Johnson
Dated: July 11, 2000
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