WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Delta Air Lines, Inc. v. Case No. D2008-1386 1. The Parties
The Complainant is Delta Air Lines, Inc. of Atlanta, Georgia, United States of America, represented by Ladas & Parry, United States of America.
The Respondent is of Bangalore, Karnataka, India. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions d/b/a PublicDomainRegistry.Com. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 10, 2008. On September 12, 2008, the Center transmitted by email to Directi Internet Solutions d/b/a PublicDomainRegistry.Com a request for registrar verification in connection with the disputed domain name. On September 15, 2008, Directi Internet Solutions d/b/a PublicDomainRegistry.Com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 September 18, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 8, 2008.
At the Complainant's request, the proceedings were suspended between October 3, 2008 and October 27, 2008, whereupon the due date for the response became November 2, 2008. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent's default on November 3, 2008.
The Center appointed Alan L. Limbury as the sole panelist in this matter on November 18, 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 (undisputed)
Complainant is one of the world's largest commercial airlines, having operated a passenger airline service since 1929. It was the first airline to offer a non-stop service from Mumbai, India to New York and has spent USD 600,000 in advertising its services in India since 2005.
Complainant has numerous registered trademarks throughout the world, including DELTA, first registered in the United States of America on November 19, 1957 (No. 654915) and first registered in India on March 9, 1992 (No. 596051).
The disputed domain name was registered by the Respondent on December 9, 2007. Without the Complainant's consent, it has been used for a commercial website through which the Respondent advertises and sells goods under the name “Delta Star Ventures” and describes itself as “a joint venture between Delta and Star Ventures of US…Delta is the leading air lines in US. Delta Air Lines operates services to more destinations than any global airline. We offer flights to 481 destinations in 105 countries”. Moreover the Respondent provided a “member login” in which unwitting Internet users are instructed to enter personal and confidential information ultimately disclosed to the Respondent, an entity describing itself as the Complainant. 5. Parties' Contentions A. Complainant
The Complainant says the disputed domain name is confusingly similar to its DELTA trademarks; that the Respondent has no rights or legitimate interest in the disputed domain name, since the Respondent is not commonly known by the disputed domain name, did not have the Complainant's permission to register it nor to use it and is using it in a way which is neither a bona fide offering of goods or services nor a noncommercial or fair use; and that the disputed domain name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:
(i) the domain name is identical or confusingly similar to a mark in which the Complainant's has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant clearly has rights in its registered DELTA marks.
The test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone: Wal-Mart Stores, Inc. v. Traffic Yoon,WIPO Case No. D2006-0812. The top level domain “.com” is to be disregarded: Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429. Likewise the content of the Respondent's website must be disregarded: A&F Trade Mark, Inc. and Abercrombie & Fitch Stores, Inc. v. Justin Jorgensen, WIPO Case No. D2001-0900.
Confusion in this context, in the sense of bewilderment or failing to distinguish between things, is a state of wondering whether there is an association, rather than a state of erroneously believing that there is one. An appropriate formulation might be: “Is it likely that, because of the similarity between the domain name on the one hand and the Complainant's trademark on the other hand, people will wonder whether the domain name is associated in some way with the Complainant?”: SANOFI-AVENTIS v. Jason Trevenio,WIPO Case No. D2007-0648.
The disputed domain name fully incorporates the DELTA mark and adds the possibly generic terms “star” and “ventures”, which do nothing to detract from the distinctiveness of that mark. See Playboy Enterprises International, Inc. v. Sookwan Park, WIPO Case No. D2001-0778. Accordingly the Panel finds the disputed domain name to be confusingly similar to the Complainant's DELTA trademark.
The Complainant has established this element of its case. B. Rights or Legitimate Interests
In the field of aviation, the DELTA mark is distinctive and well known. The Complainant's assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interest in the disputed domain name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited. The Respondent has made no attempt to do so.
The Respondent did communicate informally with the Center on several occasions following the commencement of this proceeding, claiming to be a web hosting company and giving the name and contact details of its apparent customer without any evidence of the same. The Panel does not exclude this possibility, but would have expected some supporting evidence to have been provided. See, Rules, paragraph 1; and e.g., Fifth Third Bancorp v. Secure Whois Information Service,WIPO Case No. D2006-0696; but cf. WWF-World Wide Fund for Nature aka WWF International v. Moniker Online Services LLC and Gregory Ricks,WIPO Case No. D2006-0975.
Accordingly, the Panel finds that the Respondent is responsible for the disputed domain name and that it has no rights or legitimate interests in it. The Complainant has established this element of its case. C. Registered and Used in Bad Faith
The disputed domain name has been used for a website offering aviation-related goods and services under the guise of being the Complainant, thus demonstrating that Respondent or its customer, for whom the Respondent is responsible, was clearly aware of the Complainant when the disputed domain name was registered and that it was thus intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's DELTA trademark as to the source, sponsorship, affiliation or endorsement of the Respondent's website. This is evidence of both bad faith registration and bad faith use under the Policy, paragraph 4(b)(iv).
Accordingly the Panel finds that the disputed domain name was registered and is being used in bad faith. The Complainant has established this element of its case. 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.
Alan L. Limbury
Sole Panelist
Date: December 2, 2008
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