WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Delta Air Lines, Inc. v. Domain Administrator
Case No. D2008-0370
1. The Parties
The Complainant is Delta Air Lines, Inc., of United States of America, represented by Ladas & Parry, United States of America.
The Respondent is Domain Administrator, Hong Kong, SAR of China.
2. The Domain Name and Registrar
The disputed domain name is registered with Moniker Online Services, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 7, 2008. Between March 11, 2008 and March 18, 2008 the Center transmitted by email to Moniker Online Services, Inc. requests for registrar verification in connection with the domain name at issue. On March 19, 2008, Moniker Online Services, Inc. transmitted by email to the Center its verification response disclosing an underlying registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 20, 2008, providing the underlying registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complaint filed an amended Complaint on March 24, 2008. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 27, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was April 16, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 17, 2008.
The Center appointed Stefan Abel as the sole panelist in this matter on April 28, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant, a US corporation, is one of the world’s largest commercial airlines offering airline services to numerous countries. It holds the exclusive rights in a large number of trademarks DELTA in numerous countries all over the world including the US-trademark 654915 DELTA filed on October 17, 1956 and the Hong Kong, SAR of China-trademark no. 199304026 DELTA registered on March 2, 1993 for air transportation services.
The contested domain name has been registered on November 16, 2001. The Respondent’s site at the disputed domain name contains a number of links on topics concerning Complainant’s business, i.e. flight information and flight services. These links direct users to various commercial websites including sites promoting services of other airlines.
The Respondent’s actual personal or company name is not apparent from the domain name registry. Its postal address lacks the postal code.
5. Parties’ Contentions
A. Complainant
In summary, the Complainant’s contentions are as follows:
The contested domain name is confusingly similar to the Complainant’s DELTA marks, because the domain name incorporates the DELTA mark in its entirety and merely appends the word “flights”, a term directly related to the DELTA mark as it describes the services that the Complainant’s mark is registered and used in connection with.
The Respondent has no rights or legitimate interests in the domain name. Without the Complainant’s authorization or consent, the Respondent acquired the contested domain name and is using it to divert Internet traffic to a commercial website which offers goods and services in direct competition with the Complainant. Nothing in the WhoIs information indicates that the Respondent is commonly known by “Delta” and the Complainant is not aware of any trademark applications or registrations in the name of the Respondent incorporating DELTA.
The Respondent was clearly aware of the Complainant’s rights when acquiring the contested domain name. The Complainant is not aware of any use of “Delta” in any way associated with air transportation and travel services other than in connection with the Complainant. The Respondent’s contact information was false or misleading. The Respondent did not reply to the Complainant’s cease-and-desist letters. The Complainant therefore finds that the Respondent has registered and used the contested domain name in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Policy provides for a transfer of a domain name if the Complainant establishes each of the following elements set out in paragraph 4(a)(i) to (iii) of the Policy:
- The Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the domain name; and
- the domain name has been registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets out certain circumstances which, in particular, but without limitation, shall be evidence of registration and use of the domain name in bad faith.
A. Identical or Confusingly Similar
The Panel finds that the domain name at issue is confusingly similar to the Complainant’s company name “Delta Air Lines” and to its registered trademarks DELTA. The disputed domain name consists of the Complainant’s trade name and trademark DELTA in combination with the term “flights”. This term describes the core services that the Complainant provides under its company name and trademarks. The term “flight” added to the Complainant’s company name and trademarks DELTA in the domain name therefore does not only lack any distinctive character with regard to these signs owned by the Complainant but reinforces the confusing similarity of the domain name to these marks.
The Panel finds that the first element of the Policy has been satisfied.
B. Rights or Legitimate Interests
There is no indication that the Respondent is licensed or otherwise authorized by the Complainant to use its company name or its registered trademarks or to register the disputed domain name.
The element “Delta” used in the disputed domain name does not have any apparent descriptive meaning related to the content of the site at the disputed domain.
The term “Delta flights” or “Delta” on the website at the disputed domain name is not used as a designation for a person or a company other than the Complainant or for services or products other than those provided by the Complainant.
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights and legitimate interests in the domain name. The burden of submitting evidence therefore shifts to the Respondent. The Respondent must then by concrete evidence demonstrate its rights or legitimate interests in that domain name in order to refute the prima facie case. The Respondent has made no such showing.
The Panel finds that the Respondents default in refuting the prima facie case made by the Complainant is sufficient to establish this element of the Policy. It is an often impossible task for the Complainant to prove a negative that it is primarily within the knowledge of the Respondent such as lack of rights or legitimate interests in the domain name. Producing evidence that the Respondent prima facie has no rights or legitimate interests in the domain name must therefore be regarded as sufficient to establish the requirement of paragraph 4(a)(ii) of the Policy if the Respondent fails to rebut the prima facie case. This finding is consistent with the consensus in previous panel decisions (see e.g. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).
C. Registered and Used in Bad Faith
The Panel finds that the Complainant has established this element in accordance with paragraph 4(b)(iv) of the Policy for the following reasons:
The Panel finds that, by using the domain name for a set of links to commercial websites promoting flight information and flight services the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s DELTA company name and trademarks as to source, sponsorship and affiliation of the website. The domain name combines the Complainant’s DELTA company name and trademarks with a term which is descriptive of the Complainant’s business. Internet users are therefore likely to get the idea that the Respondent’s site of the disputed domain is an official site of the Complainant sponsored by the Complainant or affiliated with the Complainant. Such likelihood of confusion would attract more customers to the site of the disputed domain name which will result in commercial gain as the Respondent’s site provides links to numerous commercial websites.
The Panel finds that the Respondent acted intentionally. It is not conceivable to the Panel that the Respondent could have registered the disputed domain name without having the Complainant and its trademarks in mind. The Respondent’s intention to use the disputed domain name as a reference to the Complainant and its trademarks is obvious considering that no rights or legitimate interests in using the domain name are apparent and considering that the Complainant is a large company doing business in a large number of countries where it has registered its trademarks, including trademarks in Hong Kong, SAR of China where the Respondent is located, years before the registration of the disputed domain name.
These circumstances are sufficient to solidly establish the bad faith element of the Policy. Moreover, the finding of bad faith is further supported by the fact that the Respondent does not reveal its actual identity and postal address in the WhoIs entry.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Stefan Abel
Sole Panelist
Dated: May 13, 2008
Full & Egal Universal Law Academy