WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Southwest Airlines Co. v. Domain Park Limited Hostmaster Hostmaster Case No. D2009-0408 1. The Parties
Complainant is Southwest Airlines Co. of Dallas, Texas, United States of America, represented by DLA Piper UK LLP, United States.
Respondent is Domain Park Limited Hostmaster Hostmaster of Berlin, Germany. 2. The Domain Name and Registrar
The disputed domain name (“Disputed Domain Name”) is registered with R Corp. (“Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 27, 2009. On March 30, 2009, the Center transmitted by email to Registrar a request for verification in connection with the Disputed Domain Name. On March 31, 2009, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on April 3, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was April 23, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 27, 2009.
The Center appointed Mark Ming-Jen Yang as the sole panelist in this matter on May 5, 2009. 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
Complainant has United States federal trademark registrations for a number of trademarks comprising “southwest airlines” and “rapid rewards”, all related to its airline business (collectively herein, the “SOUTHWEST AIRLINES RAPID REWARDS Trademark”). The list of its registrations is set out in the Complaint (paragraph 15 and Annex C) and includes:
SOUTHWEST AIRLINES RAPID REWARDS, bearing registration No. 2028640, for the services of “airline passenger services in the nature of a frequent flyer program”,
SOUTHWEST AIRLINES, bearing registration No. 1738670, for the services of “transportation services, namely the transportation of cargo and passengers”, and
RAPID REWARDS, bearing registration No. 3237447, for the services of “air transportation services featuring a frequent flyer bonus program”.
Complainant registered the following domain names: on November 25, 1998; on May 1, 1997; and on September 9, 1995.
The Disputed Domain Name was registered on December 4, 2006. 5. Parties' Contentions A. Complainant
Complainant contends (in accordance with paragraph 4(a) of the Policy) that the Disputed Domain Name is confusingly similar with the SOUTHWEST AIRLINES RAPID REWARDS Trademark in which it has rights, that Respondent has no rights or legitimate interests in the Disputed Domain Name, and that Respondent registered and uses the Disputed Domain Name in bad faith. B. Respondent
Respondent did not reply to Complainant's contentions and is in default. 6. Discussion and Findings
One fundamental requirement of due process is that a respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules, and Supplemental Rules establish procedures intended to assure that a respondent 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 Respondent of the filing of the Complaint and initiation of these proceedings and that the failure of Respondent to furnish a Response to the Complaint is not due to any omission by the Center. There is sufficient evidence in the case file for the Panel to conclude that the Center discharged its obligations under Rules, paragraph 2(a) (see Section 3, Procedural History, supra).
In case of default, under paragraph 14(a) of the Rules, “the Panel shall proceed to a decision on the complaint”, and under paragraph 14(b) of the Rules, “the Panel shall draw such inferences [from the default] as it considers appropriate”. Furthermore, paragraph 15(a) of the Rules 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 applicable.” Since Respondent has not submitted any evidence, the Panel will render its Decision on the basis of the uncontroverted evidence supplied by Complainant. A. Identical or Confusingly Similar
Complainant contends that it has rights in the SOUTHWEST AIRLINES RAPID REWARDS Trademark and that the Disputed Domain Name is confusingly similar thereto.
In particular, Complainant contends (and the Panel accepts as uncontroverted, convincing and supported by the evidence) that its SOUTHWEST AIRLINES RAPID REWARDS Trademark has “become distinctive and famous and enjoyed such distinctiveness and notoriety since long prior to the date on which Respondent registered” the Disputed Domain Name. In addition to such common law rights, Complainant refers to the statutory rights flowing from its United States of America trademark registrations listed in Section 4, Factual Background, supra. The Panel concludes that Complainant has rights in its SOUTHWEST AIRLINES RAPID REWARDS Trademark.
In particular, Complainant contends (and the Panel accepts as uncontroverted, convincing and supported by the evidence) that the only difference between its SOUTHWEST AIRLINES RAPID REWARDS Trademark as compared to the Disputed Domain Name, is the addition of the general top-level domain (gTLD) “.com”; and that such difference has no legal significance to avoid a finding of confusingly similarity.
The Panel concludes that Complainant has met the first requirement of the Policy. B. Rights or Legitimate Interests
Complainant contends that Respondent has no rights or legitimate interests in the Disputed Domain Name.
In particular, Complainant contends (and the Panel accepts as uncontroverted, convincing and supported by the evidence) that: (1) Complainant did not authorize Respondent to register the Disputed Domain Name and does not maintain any licensing relationship with Respondent; and (2) Respondent cannot demonstrate any of the criteria set out in Paragraph 4(c) of the Policy.
Respondent has provided no arguments or evidence of rights or legitimate interests to counter Complainant's contentions on this issue. By virtue of the legal rights (statutory and common law) in its SOUTHWEST AIRLINES RAPID REWARDS Trademark, Complainant convincingly argues that Respondent has no rights or legitimate interests in the Disputed Domain Name. The Panel, especially in the absence of any Response from Respondent, considers that the circumstances described in paragraph 4(c) of the Policy, regarding the circumstances in which Respondent may demonstrate rights or legitimate interests in the Disputed Domain Name, likely do not exist.
The Panel concludes that Complainant has met the second requirement of the Policy. C. Registered and Used in Bad Faith
Complainant contends that Respondent registered and is using the Disputed Domain Name in bad faith.
In particular, Complainant contends (and the Panel accepts as uncontroverted, convincing and supported by the evidence) that: (1) Respondent registered the Disputed Domain Name many years after Complainant obtained its United States federal registrations and domain name registrations (listed in Section 4, Factual Background, supra); and (2) Respondent registered and used the Disputed Domain Name as an intentional attempt to attract Internet users to third-party websites, for commercial gain, by creating a likelihood of confusion with Complainant's SOUTHWEST AIRLINES RAPID REWARDS Trademark and its website based on its domain name. Complainant's second contention is more particularized as follows: Respondent's website (using the confusingly similar Disputed Domain Name) diverts customers, by click-through links, to third-party websites that offer on-line booking services for airline tickets, in competition with Complainant and its websites (based on its domain names set out in Section 4, Factual Background, supra); and, on Complainant's information and belief, Respondent receives click-through fees for diverting Internet users to such third-party websites.
Furthermore, Complainant contends (and the Panel accepts as uncontroverted, convincing and supported by the evidence) that: (1) Respondent registered the Disputed Domain Name to prevent Complainant from reflecting its SOUTHWEST AIRLINES RAPID REWARDS Trademark in domain name; and (2) Respondent has engaged in a pattern of such conduct, noting at least 46 UDRP Complaints filed with the Center and the National Arbitration Forum, of which, each case was resolved with the subject domain name been ordered to be transferred or cancelled.
The Panel concludes that Complainant has met the third requirement of the Policy. 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 Complainant.
Mark Ming-Jen Yang
Sole Panelist
Dated: May 12, 2009
Full & Egal Universal Law Academy