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 CCDP Consulting of Owerri, Imo State, Nigeria. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 16, 2010. On June 17, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a/ PublicDomainR. a request for registrar verification in connection with the disputed domain name. On July 1, 2010 Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant. 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 July 2, 2010. In accordance with the Rules, paragraph 5(a), the due date for response was July 22, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 27, 2010.
The Center appointed Mary Padbury as the sole panelist in this matter on August 9, 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.
On August 30, 2010, the parties were informed that due to exceptional circumstances, the due date for decision in this case was extended. 4. Factual Background
Complainant, Delta Air Lines, Inc. is one of the world’s largest commercial airlines. Complainant offers service to more than 311 destinations in 52 countries and is a founding member of SkyTeam®, a global airline alliance. Complainant's services, including those of its affiliates, range from air transportation and shipping services to the provision of arena facilities for exhibitions, education and training in flight instruction and aviation science, tracking and monitoring of baggage, cargo, mail, freight, package shipments and aircraft parts, inflight entertainment services and vacation-planning services.
Complainant is owner of the worldwide trademark registrations, including those listed in Annex D to the Complaint, which exist entirely of or incorporate the designation DELTA.
Printouts of the certificates for U.S. Trademark Registration No. 0523611 for the mark DELTA AIR LINES, which issued on April 4, 1959, and U.S. Registration No. 0654915 for the mark DELTA, which issued on November 19, 1957, were attached as Annexure E to the Complaint.
The domain name was registered by Respondent on February 12, 2010 after Complainant's first use and registration of the marks DELTA AIR LINES and DELTA. Respondent was using the domain name to operate a commercial website which purported to be an official website of Complainant. The Copyright Notice on the website showed “©2009 Delta Air Lines, Inc.” and the website purported to provide official information regarding Complainant, including false contact information. Annex F to the Complaint comprised printouts of the webpages previously available through the domain name.
Complainant submitted a takedown request to the Internet Service Provider (ISP) hosting the website, Red Fox UK Limited, requesting that the “www.” website be suspended pursuant to the ISP’s terms of service. Red Fox UK Limited agreed with Complainant’s contentions and subsequently removed the website content. The disputed domain name does not currently resolve to an active website.
On April 21, 2010, upon discovery of Respondent’s registration of the domain name, Complainant sent to Respondent a cease-and-desist letter by email and mail. Respondent did not reply to Complainant’s cease-and-desist letter. 5. Parties’ Contentions A. Complainant
Complainant contends that: (1) Complainant has legitimate trademark rights to the DELTA and DELTA AIR LINES marks; (2) The domain name is confusingly similar to Complainant’s marks;
(3) Respondent has no rights to or legitimate interests in the disputed domain name; and (4) the disputed domain name was registered and used in bad faith.
Complainant contends that the domain name incorporates Complainant’s DELTA mark in its entirety and the majority of Complainant’s DELTA AIR LINES mark.
Complainant also contends that it has not authorized, licensed or consented to Respondent’s registration and use of a domain name incorporating the DELTA or DELTA AIR LINES trademarks, or any confusingly similar variation of Complainant’s marks. Furthermore, to Complainant's knowledge, there are no current trademark applications or registrations in the name of Respondent for any mark incorporating the designation DELTA or DELTA AIR LINES anywhere in the world and Respondent is not commonly known by the domain name.
Complainant contends that Respondent registered the domain name, a domain name confusingly similar to Complainant’s DELTA and DELTA AIR LINES marks, and is commercially using the domain to divert Internet traffic to a commercial website through which it identifies itself as Complainant and sells and advertises services under Complainant’s name, despite having no affiliation with Complainant. Complainant contends such use is neither a bona fide offering of goods or services nor a legitimate non-commercial or fair use of the disputed domain name.
Complainant contends that Respondent likely commercially benefited from Internet users that arrived at the website associated with the disputed domain name and who mistakenly believed Respondent’s website was associated with Complainant and attempted to purchase airline tickets for flight services provided by Complainant. Complainant asserts that Respondent was intentionally attempting to attract Internet users to Respondent’s website for commercial gain by creating a likelihood of confusion with Complainant's marks as to the source, sponsorship, affiliation or endorsement or Respondent’s website and that this involved bad faith registration and use.
Complainant further contends Respondent was likely involved in fraudulent activities, including, but not limited to, phishing, pharming and other activities intended to defraud Internet users, as Respondent used the disputed domain name to identify itself as Complainant and possibly to solicit personal and confidential information, including credit card information, from Internet users. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Panel must decide a complaint on the basis of the statements in documents submitted and in accordance with the Policy, the Rules and the Supplemental Rules. The Complainant has the onus of proving three elements:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(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 Panel finds that the disputed domain name is identical or confusingly similar to the trademarks DELTA and DELTA AIRLINES. The disputed domain name incorporates the Complainant’s trademark in its entirety and the deletion of "s" and the addition of “uk” does not preclude confusion. B. Rights or Legitimate Interests
The Panel must decide whether the Respondent has any rights or legitimate interests to the domain name. In doing so, regard may be had to circumstances which might demonstrate this as follows:
(i) before notice to the respondent of the dispute, the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent, as an individual, business, or other organization, has been commonly known by the domain name, even if it acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel accepts the contention of Complainant that Respondent has no rights or legitimate interests in the disputed domain name. There is no evidence that Respondent, as an individual, business or other organization has been commonly known by the domain name. It is apparent that Respondent’s use is commercial and not bona fide. C. Registered and Used in Bad Faith
The Panel is satisfied that the domain name was registered and is being used in bad faith. The following non-exclusive list of circumstances, if found by the Panel to be present, shall be evidence of registration in bad faith, paragraph 4(b) of the Policy:
"(i) circumstances indicating that the Respondent has registered 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 for valuable consideration in excess of the Respondent’s 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 domain name in a corresponding domain name, provided 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 web site 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 the Respondent’s web site or location or of a product of service on your website or location."
The Panel is satisfied that 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 Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on your website or location. As such the Panel finds evidence of registration and use in bad faith. 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.
Mary Padbury
Sole Panelist
Dated: September 3, 2010
Full & Egal Universal Law Academy