WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Spirit Airlines, Inc. v. Sepia
Case No. D2002-0443
1. The Parties
The Complainant is Spirit Airlines, Inc., having an office at 2800 Executive Way, Miramar, Florida 33025 United States of America.
The Respondent is Sepia, having an office at Plaza Bonita Local 5b P.B S.M.28
Cancun, Quintana Roo 77500 Mexico.
2. The Domain Name and Registrar
The domain name is .
The Registrar is Tucows Inc., having an office business at 96 Mowat Avenue, Toronto, Ontario M6K 3M1 Canada.
3. Procedural History
On May 7 and May 13, 2002 , a complaint (Original Complaint) about the domain name, was filed in electronic form and in hard copy, respectively, by the Complainant with the WIPO Arbitration and Mediation Center ("the Center"). The respondent named therein was TRN and the registrar named therein was Network Solutions, Inc.
On May 13, 2002, the Center sought verification in connection with this case, and learned that the domain name was then registered to the Respondent Sepia and that the Registrar was Tucows Inc. The Center advised the Complainant accordingly.
On June 4, 2002, the Complainant filed an Amended Complaint, which incorporated the Original Complaint and updated the identities to the Registrar Tucows, Inc. and Respondent Sepia.
The Center verified that the Amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers, the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules").
On June 5, 2002, the Center forwarded the Notification of (Amended) Complaint and Commencement of Administrative Proceeding by email and post to Respondent Sepia. The due date for a response was indicated as June June 25, , 2002.
On July 3, 2002, the Center sent Notification of Respondent Default by email to Respondent Sepia as no response had been received by the due date.
The undersigned Panelist, Mr. Mark Yang, submitted to the Center a Statement of Acceptance and Declaration of Impartiality and Independence.
On July 10, 2002, the Center transmitted by email to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Mark Yang was formally appointed as the Sole Panelist and the projected Decision Date was indicated as July July 24, , 2002.
The Sole Panelist is satisfied with the Center�s assessment that it verified the Amended Complaint�s compliance with the relevant requirements of the Rules, Supplemental Rules and Policy, and that this Administrative Panel (hereinafter, "Panel") was properly constituted and appointed in accordance therewith.
The Panel has not received any requests from the Complainant or the Respondent Sepia regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties (taking note of the Respondent Sepia�s default in responding to the Amended Complaint).
Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), "to employ reasonably available means calculated to achieve actual notice to Respondent". Therefore, the Panel shall issue its decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of the Respondent Sepia�s response.
4. Factual Background
The respondent named in the Original Complaint, TRN, registered the domain name on August August 19, , 2000, with the Registrar Network Solutions, Inc. The Respondent Sepia registered the domain name with the Registrar Tucows Inc. on May May 4, , 2002,
In the Amended Complaint (paragraphs 2-10), and Original Complaint (paragraphs 2-27) to the extent updated by the Amended Complaint, and the respective associated Annexes, the Complainant submitted evidence and contentions of various factual and legal conclusions based on such evidence.
Since the Respondent Sepia has not submitted any evidence and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. The Panel�s position on some contentions is amplified below (in Discussion and Findings).
In the absence of any evidence to the contrary submitted by the Respondent Sepia, this Panel accepts much (but certainly not all) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence, as set out in the Original Complaint and Amended Complaint. The Panel accepts enough to render its decision below.
5. Parties� Contentions
A. The Complainant alleges that the domain name, , is identical or confusingly similar to trademark "SPIRIT AIRLINES, INC." in which the Complainant has rights, that the Respondent Sepia has no rights to or legitimate interest in the domain name, and that the domain name is registered and being used in bad faith by the Respondent Sepia. The Complainant requests the transfer to it of the domain name.
B. The Respondent Sepia has not filed a response to the Amended Complaint, and is in default.
6. Discussion and Findings
One requirement of fundamental due process is that a Respondent Sepia has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a Respondent Sepia is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
In this case, the Panel is satisfied that the Center took all steps reasonably necessary to notify the Respondent Sepia of the filing of the Amended Complaint and initiation of these proceedings, and that the failure of the Respondent Sepia to furnish a response to the Amended Complaint is not due to any omission by the Center. There is sufficient evidence, in the case file provided by the Center, for the Panel to conclude the Center discharged its obligations under Rules, paragraph 2(a) (see Procedural History, supra).
Where there is default, under Rule 14(a), "the Panel shall proceed to a decision on the complaint", and under the Rule 14(b), "the Panel shall draw such inferences [from the default] as it considers appropriate". Furthermore, Rule 15(a) provides that a "Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate". Since the Respondent Sepia has not submitted any material and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant.
Paragraph 4(a) of the Policy sets forth three elements to be established by a Complainant to merit a finding that a Respondent Sepia has engaged in abusive domain name registration, and to obtain relief. Each of the following three elements must be established by a Complainant:
(I) Respondent Sepia�s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(II) Respondent Sepia has no rights or legitimate interests in respect of the domain name; and
(III) Respondent Sepia�s domain name has been registered and is being used in bad faith.
I. The Respondent Sepia�s domain name is identical or confusingly similar to the trademark SPIRIT AIRLINES, INC. in which the Complainant has rights.
Based on the uncontroverted evidence submitted by the Complainant and the facts and conclusions contended for (see Factual Background, above), the Panel finds that:
(a) the Complainant, on April 11, 2000, obtained registration for the trademark SPIRIT AIRLINES, INC. in the United States of America, in association with the services of "scheduled and chartered air transportation" (hereinafter, "airline services");
(b) the Complainant, since 1992, has used its trademark SPIRIT AIRLINES, INC. in commercializing its airline services in the United States of America, and in particular, the Complainant is using it on the Internet at its "" website;.
(c) the Complainant had revenues of about $354 million in the year 2001 from its airline services and that about one third of its ticket sales come through the Internet.
The Panel finds that the Complainant has significant rights in its trademark SPIRIT SPIRIT AIRLINES, INC. in the United States of America.
The Panel finds that that presence of a hyphen and the omission of the corporate identifier, "Inc." are of insufficient legal significance to distinguish the words """ from SPIRIT AIRLINES, INC.
Accordingly, the Panel finds that the domain name is confusingly similar to the "SPIRIT AIRLINES, INC." trademark in which the Complainant has rights.
II. Respondent Sepia has no rights or legitimate interests in respect of the domain name
Respondent Sepia has submitted no evidence, generally, and none under paragraph 4(c) of the Policy in particular, to support a finding of it having any rights or legitimate interests in respect of the domain name. This is sufficient for the Panel to accept the Complainant�s contention of II.
Furthermore, based on the uncontroverted evidence submitted by the Complainant and the factual and legal and conclusions contended for (see Factual Background, above), the Panel accepts in large measure, the evidence and contentions of factual and legal and conclusions set out in the Original and Amended Complaint. In particular, the Panel finds that the Complainant�s aforementioned activities (a) and (b) under I above, were likely well known by the Respondent Sepia when it registered the domain name with the Registrar Tucows Inc. and that makes it very difficult, even if it had submitted evidence, for it to show it had rights or legitimate interests in the domain name .
Accordingly, the Panel finds that the Respondent Sepia has no rights or legitimate interests in respect of the domain name.
III. Respondent Sepia�s domain name has been registered and is being used in bad faith
Based on the uncontroverted evidence submitted by the Complainant and the factual and legal conclusions contended for (see Factual Background, above), the Panel accepts in large measure, the evidence and contentions set out in the Original and Amended Complaint. In particular, the domain name was registered in bad faith because, it was done with knowledge of the Complainant�s prior US trademark registration of "SPIRIT AIRLINES, INC." and its use of SPIRIT AIRLINES, INC. as a trademark in the commercialization of its airline services, certainly as of the date of registration of the domain name with the Registrar Tucows Inc. on May May 4, , 2002, after it had been sent the Complainant�s demand letter of April 12, 2002. Also in particular, the domain name is being used in bad faith because, amongst other reasons, the use is to divert Internet use traffic to the Respondent Sepia�s website, "", with a false association to the Complainant and its trademark "SPIRIT AIRLINES, INC." Also, in particular, the Respondent Sepia, its principals or affiliates, appear to have engaged in a conduct of registering domain names that are identical or substantially similar to the registered trademarks or corporate names of airlines, hotels and other companies involved in the travel and lodging industry, of which the domain name of the present case is an example.
The Panel finds that the Respondent Sepia�s domain name has been registered and is being used in bad faith.
7. Decision
The Panel finds, within the meaning of paragraph 4(a) of the Policy, that the domain name is confusingly similar to Complainant�s trademark "SPIRIT AIRLINES, INC." in which it has rights; that the Respondent Sepia has no rights or legitimate interests in respect of the domain name; and that the domain name has been registered and is being used in bad faith by the Respondent Sepia.
The Panel orders that the domain name be transferred to the Complainant, Spirit Airlines, Inc.
Mark Yang
Sole Panelist
Date: July 24, 2002
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