WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Delta Air Lines, Inc. v. Domains by Proxy, Inc. / Gerard Vidale Case No. D2010-0750 1. The Parties
Complainant is Delta Air Lines, Inc. of Atlanta, Georgia, United States of America, represented by Ladas & Parry, United States of America.
Respondent is Domains by Proxy, Inc. / Gerard Vidale of Arizona, United States of America and Springboro, Ohio, United States of America. 2. The Domain Names and Registrar
The disputed domain names and are registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 14, 2010. On May 14, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain names. On May 17, 2010, GoD, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 19, 2010, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on May 22, 2010. The Center verified that the Complaint together with the amendment to 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 May 26, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 15, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on June 16, 2010.
The Center appointed Jordan S. Weinstein as the sole panelist in this matter on June 22, 2010. 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 is the owner of over 150 trademark registrations in countries around the world for the mark DELTA and DELTA AIR LINES, in connection with air transportation of passengers and other services. In the United States, the earliest of Complainant's registrations date from 1950, and claim use since 1934.
Respondent's domain names and were registered on June 20, 2009, decades after Complainant first used and registered its DELTA and DELTA AIR LINES marks in the United States (“U.S.”). Complainant also owns U.S. Registration No. 2,408,003 for the mark DELTA VACATIONS, registered on November 28, 2000, prior to registration of the domain names at issue. Complainant did not provide information regarding the dates its trademarks were registered in other jurisdictions so the Panel is unable to assess whether Complainant's non-U.S. registrations predate the registration of the domain names at issue. 5. Parties' Contentions A. Complainant
Complainant asserts that it is a worldwide leader in air transportation services, that it has provided passenger airline service since 1929, and that it is today one of the world's largest commercial airlines. Complainant asserts that Respondent is using the domain names and to direct Internet users to commercial websites which further direct the users to the websites of Complainant's direct competitors. Complainant asserts that upon its discovery of Respondent's domain names, Complainant sent Respondent cease and desist letters by e-mail and courier, notifying Respondent that its registration and use of the domain names at issue violated Complainant's trademark rights, and requesting transfer of the domain names at issue. Complainant asserts that Respondent never responded to Complainant's correspondence, never deleted or transferred the domain names at issue to Complainant, and continued to link the domain names to websites featuring links directing Internet users to the websites of Complainant's direct competitors.
Complainant asserts that the domain names at issue incorporate Complainant's DELTA, DELTA AIR LINES and DELTA VACATIONS trademarks in their entirety, and that the domain names at issue are confusingly similar to Complainant's trademarks because Complainant's DELTA mark is the principal element of the domain names at issue. Complainant asserts that the addition of the “.com” gTLD fails to distinguish the domain names at issue from Complainant's trademarks because gTLDs are a functional necessity rather than an arbitrary trademark choice.
Complainant asserts that Respondent has no rights or legitimate interests in the domain names at issue because Respondent registered the domain names without Complainant's authorization or consent and uses the domain names to divert Internet traffic to generic web pages featuring links to the websites of Complainant's direct competitors. As a result, Complainant asserts that Respondent's use of the domain names demonstrates neither a bona fide offering of goods or services under paragraph 4(c)(i) of the Policy nor a legitimate noncommercial or fair use under paragraph 4(c)(iii) of the Policy. Complainant asserts that it has not authorized, licensed or consented to Respondent's registration and use of the domain names at issue or any other variation of Complainant's trademark. Complainant asserts that it is unaware of any current trademark applications or registrations in Respondent's name for any trademark incorporating “Delta” or “Delta Vacations” anywhere in the world, and that nothing in the WhoIs information for the domain names at issue indicates that Respondent is commonly known by either “Delta” or “Delta Vacations”. Complainant also asserts that Respondent's failure to counter the allegations set forth in Complainant's cease and desist letters amounts to adoptive admission of the allegations set forth therein.
Complainant asserts that Respondent has registered and used the domain names at issue in bad faith because Respondent has used them to divert Internet users to Respondent's websites, and that Respondent likely garners click-through fees for each Internet user who clicks on one of the links displayed on Respondent's websites. Further, Complainant asserts that these links further divert Internet traffic to websites offering airline services for sale, in direct competition with Complainant's services offered under its DELTA and DELTA VACATIONS trademarks, further constituting registration and use of the domain names at issue in bad faith pursuant to paragraph 4(b)(iv) of the Policy.
Complainant further asserts that Respondent's registration and use of the domain names at issue to divert Internet traffic to the websites of Complainant's competitors establishes bad faith under paragraph 4(b)(iii) of the Policy because the domain names were registered for the purpose of disrupting the business of a competitor. Complainant asserts that Respondent was clearly aware of Complainant's rights and its trademarks when Respondent registered the domain names, because the domain names at issue incorporate Complainant's DELTA, DELTA AIR LINES and DELTA VACATIONS trademarks, and the associated websites link to websites advertising directly competitive airline services. Finally, Complainant asserts that Respondent's failure to counter the allegations in Complainant's cease and desist letters amounts to an adoptive admission of the allegations set forth in the letters, including that Respondent's registration of the domain names demonstrated a deliberate and bad faith attempt to divert Internet users intending to access Complainant's website.
Complainant requests that the panel issue a decision transferring the domain names at issue to Complainant. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings A. Applicable Policy Provisions
Paragraph 4(a) of the Policy requires Complainant to prove each of the following three elements in order to prevail in this proceeding:
(i) the domain names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain names; and
(iii) the domain names have been registered and are being used in bad faith.
In order to prevail in a proceeding under the Policy, a complainant must typically prove both registration and use in bad faith. See World Wrestling Federation Entertainment, Inc. v. Michael Bosman,WIPO Case No. D1999-0001; Robert Ellenbogen v. Mike Pearson,WIPO Case No. D2000-0001.
However, the Policy states that the following circumstances shall be evidence of the registration and use of a domain name in bad faith:
(i) Circumstances indicating that [the respondent has] registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) [the respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the respondent has] engaged in a pattern of such conduct; or
(iii) [the respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [its] website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [its] website or location or of a product or service on [its] website or location.
Policy, paragraph 4(b). These circumstances are non-exclusive, and a panel may consider other circumstances as constituting registration and use of a domain name in bad faith.
Where, as here, a respondent is in default, the Panel may draw such inferences as it considers appropriate. Policy, paragraph 14(b). B. Identical or Confusingly Similar
The Panel agrees that the domain names and are confusingly similar to Complainant's registered trademarks DELTA, DELTA AIR LINES and DELTA VACATIONS. In the case of Complainant's U.S. registrations, the words “airlines” and “vacations” are disclaimed, indicating that DELTA is the dominant portion of each mark. Respondent has incorporated not only the identical dominant portion of each of Complainant's marks in its domain names, but has also incorporated the additional portions of Complainant's trademarks in its domain names. See Oki Data Ams., Inc. v. ASD, Inc.,WIPO Case No. D2001-0903 (November 6, 2001). Adding the top level domain names “.com” and “.org” to each domain name fails to distinguish the domain names from Complainant's trademarks for purposes of determining whether they are identical or confusingly similar. See Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429 (June 25, 2000). The Panel finds that Complainant has provided evidence sufficient to establish element 4(a)(i) of the Policy. C. Rights or Legitimate Interests
Complainant asserts, and Respondent has failed to rebut, that Complainant has not authorized, licensed or consented to Respondent's registration and use of the domain names at issue, and that Respondent is not commonly known by the name “Delta Airlines Vacations”. Combined with the inferences this Panel may make as a result of Respondent's default herein, this Panel finds that Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests in the domain names at issue, which showing Respondent has failed to rebut. See Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 2.1 and cases cited therein. As a result, Complainant has established element 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
The Panel finds that Complainant has provided sufficient evidence to satisfy paragraph 4(b)(iv) of the Policy, namely that by using the domain names at issue, Respondent intentionally intended to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of Respondent's website.
In addition to the inferences to be drawn from Respondent's default in this proceeding, the Panel draws an inference that Respondent was aware of Complainant's trademarks at the time it registered the domain names at issue from the fact that Respondent's websites contain links to the websites of Complainant's direct competitors, and that Respondent failed to respond to Complainant's cease and desist letters. See The Great Eastern Life Assurance Company Limited v. Unasi Inc.,WIPO Case No. D2005-1218 (January 26, 2006). 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 names, and , be transferred to Complainant.
Jordan S. Weinstein
Sole Panelist
Dated: July 6, 2010
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