Complainant is Delta Air Lines, Inc. of Atlanta, Georgia, United States of America, represented by Ladas & Parry LLP, Digital Brands Practice, United States of America.
Respondent is Miguel Gila of Puerto Iguazu, Argentina. 2. The Domain Name and Registrar
The disputed domain name is which is registered with Backslap Domains, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 20, 2010. On October 21, 2010, the Center transmitted by email to Backslap Domains, Inc. a request for registrar verification in connection with the disputed domain name. On October 21, 2010, the Registrar 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 Respondent of the Complaint, and the proceedings commenced on October 29, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was November 18, 2010; due to an administrative issue regarding the delivery of the Written notice to Respondent, the Center extended the deadline to November 21, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 23, 2010. On December 7, 2010, the Center transmitted an email to the Registrar regarding the expiry of the disputed domain name. On December 7, 2010, the Registrar transmitted by email to the Center its response informing that the disputed domain name has been renewed and that it was on Registrar LOCK status.
The Center appointed Gerardo Saavedra as the sole panelist in this matter on December 7, 2010. This Panel finds that it was properly constituted. This 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 a corporation organized under the laws of Delaware, United States of America.
Complainant is engaged, mainly, in the provision of international air transportation services for persons, property and mail.
Complainant has rights over the DELTA and DELTA AIR LINES trademarks, for which it holds several registrations around the world, including: DELTA, registration No. 654915 with the United States Patent and Trademark Office (USPTO), registered in 1957, international class 39; DELTA AIR LINES and design, registration No. 963228 with the USPTO, registered in 1973, international class 39; DELTA AIR LINES, registration No. 1687795 with the National Institute of Industrial Property (Instituto Nacional de la Propiedad Industrial) of Argentina.
The disputed domain name was created on January 25, 2000. 5. Parties’ Contentions A. Complainant
Complainant is known as a worldwide leader in air transportation services for persons, property and mail.
Complainant has provided passenger airline service since 1929 and is one of the world’s largest commercial airlines, generating over USD 28 billion in annual revenue. Complainant offers customers service to more destinations than any other global airline with Delta and Delta Connection carrier service to 350 destinations in 60 countries.
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, in-flight entertainment services and vacation-planning services.
Through Complainant’s long and successful efforts, the DELTA portfolio of worldwide trademark registrations has earned recognition, a good name and a reputation for high quality.
Respondent originally registered the disputed domain name using a privacy service. On September 3, 2009, Complainant sent by email and courier a cease-and-desist letter to the contact particulars provided by the privacy service. This communication notified the said registrant that its registration and use of the disputed domain name violated Complainant’s rights in its trademark registrations and requested the transfer of the disputed domain name. The registrant did not reply, although the WhoIs details were changed to show Respondent as the registrant.
The disputed domain name is confusingly similar to the trademarks over which Complainant has rights.
The disputed domain name was registered by Respondent in 2000, decades after Complainant’s first use of the DELTA mark in the United States of America and international commerce.
The disputed domain name entirely incorporates Complainant’s DELTA trademark and merely omits the term “air” from Complainant’s DELTA AIR LINES trademark. The disputed domain name is confusingly similar to Complainant’s trademarks because the DELTA mark is the principal element of the disputed domain name.
Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant has not authorized, licensed or consented to Respondent’s registration and use of a domain name incorporating the DELTA and/or DELTA AIR LINES trademarks, or any confusingly similar variation of Complainant’s marks.
Respondent has no current trademark applications or registrations for any mark incorporating DELTA and/or DELTA AIR LINES anywhere in the world. Moreover, Respondent is not commonly known by the designation DELTA and/or DELTA AIR LINES.
Respondent is using the disputed domain name to divert Internet traffic to generic web pages featuring links to web sites offering for sale the services of Complainant’s direct competitors. Such use demonstrates neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain name.
The disputed domain name was registered and is being used in bad faith.
Respondent has registered a domain name confusingly similar to Complainant’s trademarks and used the disputed domain name to divert Internet users to Respondent’s website, where Respondent likely garners click-through fees for each Internet user who selects one of the links. Moreover, the links on Respondent’s website further divert Internet traffic to websites that offer airline services for sale, in direct competition with the services offered by Complainant.
Respondent’s registration and use of the disputed domain name to divert Internet traffic to Complainant’s direct competitors establishes Respondent’s bad faith registration and use of the disputed domain name under the Policy because the disputed domain name was registered for the purpose of disrupting the business of a competitor.
Respondent was clearly aware of Complainant’s trademarks when Respondent registered the disputed domain name, because the domain name incorporates Complainant’s trademarks and the associated web site links to web sites advertising airline services, which are in direct competition with those services offered by Complainant.
Further, Respondent has failed to respond to Complainant’s cease-and-desist letter. Such silence further evidences Respondent’s bad faith.
Complainant requests that the disputed domain name be transferred to Complainant. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to “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”.
The lack of response from Respondent does not automatically result in a favorable decision for Complainant1. The burden for Complainant, under paragraph 4(a) of the Policy, is to show: (i) that the disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) that Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
It is undisputed that Complainant has rights over the DELTA and DELTA AIR LINES trademarks.
The disputed domain name entirely incorporates the DELTA trademark adding the suffix “line”. As regards the DELTA AIR LINES trademark the disputed domain name merely omits the term “air” and deletes the “s” in the term “lines”. Such variations are not enough to avoid similarity, nor do they add anything to prevent the likelihood of confusion.
Prior panel decisions support this Panel’s view (Cfr. Dr. Ing. h.c. F. Porsche AG v. Del Fabbro Laurent,WIPO Case No. D2004-0481; Nokia Corporation v. N a.k.a. IBCC,WIPO Case No. D2000-0102; Singapore Airlines Limited v. European Travel Network,WIPO Case No. D2000-0641).
Therefore, this Panel finds that the disputed domain name is confusingly similar to Complainant’s DELTA and DELTA AIR LINES trademarks. B. Rights or Legitimate Interests
Complainant has alleged and Respondent has failed to deny that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant asserts that it has never licensed, consented or authorized Respondent to register or use any domain name that incorporates the DELTA and/or DELTA AIR LINES trademarks or any confusingly similar variation of Complainant’s trademarks. Furthermore, Complainant contends that Respondent has no current trademark applications or registrations for any mark incorporating the words DELTA and/or DELTA AIR LINES.
Respondent is using the website associated with the disputed domain name to show links to websites offering for sale the services of Complainant’s direct competitors, with the clear purpose of diverting Internet users through such links to other websites unrelated to Complainant’s official website. As established in prior cases, such use is not a bona fide offering of products or services2.
In the absence of any explanation from Respondent as to why it might consider it has a right or legitimate interest in using a domain name which incorporates Complainant’s trademarks, this Panel considers that Complainant has established prima facie that Respondent has no rights or legitimate interests in the disputed domain name3.
Based on the aforesaid, this Panel concludes that Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Complainant contends that Respondent’s registration and use of the disputed domain name is in bad faith.
This Panel notes that Complainant’s DELTA AIR LINES trademark is registered in Argentina (among other jurisdictions), country where Respondent is domiciled pursuant to the Registrar’s report, besides that Complainant and Complainant’s trademarks are widely-known internationally in the field of air transportation.
Respondent uses the website associated to the disputed domain name to show sponsored links to flight tickets and airline related websites. This means Respondent had enough information on Complainant and air carriers generally to know what is suggested in that field by Complainant’s trademarks, that such conduct indicates bad faith in registering and using the disputed domain name4.
Furthermore, Respondent’s failure to reply to Complainant’s cease-and-desist letter is also indicative of bad faith. Such finding is still valid even where a privacy protection service is provided by a third party, since such third party provider would be expected to forward such cease-and-desist letter to its principal (i.e. the underlying registrant)5.
In light of all the above, this Panel finds that the disputed domain name was registered and is being used in bad faith. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, this Panel orders that the domain name be transferred to Complainant.
Gerardo Saavedra
Sole Panelist
Dated: December 20, 2010
1 See Berlitz Investment Corp. v. Stefan Tinculescu,WIPO Case No. D2003-0465, where it is established: “the panel finds that as a result of the default, Respondent has failed to rebut any of the factual assertions that are made and supported by evidence submitted by Complainant. The panel does not, however, draw any inferences from the default other than those that have been established or can fairly be inferred from the facts presented by Complainant and that, as a result of the default, have not been rebutted by any contrary assertions or evidence”.
2 See Ticketmaster Corporation v. DiscoverNet, Inc.,WIPO Case No. D2001-0252; Pfizer Inc v. The Magic Islands,WIPO Case No. D2003-0870.
3 See Intocast AG v. Lee Daeyoon,WIPO Case No. D2000-1467: “For methodical reasons it is very hard for the Complainant to actually prove that Respondent does not have rights or legitimate interests in respect of the domain name, since there is no strict logical means of verifying that a fact is not given... If a rule contains a negative element it is generally understood to be sufficient that the complainant, by asserting that the negative element is not given, provides prima facie evidence for this negative fact. The burden of proof then shifts to the respondent to rebut the complainant’s assertion”.
4 See, Microsoft Corporation v. Gioacchino Zerbo,WIPO Case No. D2005-0644: “It may be inferred that the Respondent did register the domain name in dispute on purpose, to disrupt the Complainant’s business, as it used the domain name with sponsored links to competitors.”; Bartercard Ltd & Bartercard International Pty Ltd . v Ashton-Hall Computer Services,WIPO Case No. D2000-0177: “the Domain Name has been used to host a website offering competing products to those offered by the Complainant... this suggests that the Respondent registered the Domain Name with the primary intention of disrupting the business of a competitor... It also indicates that the Respondent has used the Domain Name to attract Internet users to its website for commercial gain by virtue of confusion with the Complainant’s mark... Under the Policy, both of these are sufficient to show registration and use of the Domain Name in bad faith”. Micro Electronics, Inc. v. J Lee,WIPO Case No. D2005-0170: “the sole use of the disputed domain name to divert traffic to a site providing sponsored links of various commercial companies is indicative of bad faith”.
5 See Ebay Inc. v. E and Tony Caranci,WIPO Case No. D2000-1632; also HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager,WIPO Case No. D2007-0062: “such bad faith is compounded when the domain name owner or its duly authorized privacy service, upon receipt of notice that the domain name is identical to a registered trademark, refuses to respond or even to disclose the domain name owner’s identity to the trademark owner... Such conduct is not consistent with what one reasonably would expect from a good faith registrant accused of cybersquatting”.
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