The Complainant is Delta Air Lines, Inc. of Atlanta, United States of America, represented by Ladas & Parry LLP, United States of America.
The Respondent is D of Shanghai, the People’s Republic of China / Rampe Purda of Hailuoto, Finland. 2. The Domain Name and Registrar
The disputed domain name is registered with Hebei Guoji Maoyi (Shanghai) LTD aka Hebei International Trading (Shanghai) Co., Ltd dba HebeiD. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 18, 2011. On January 18, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 20, 2011, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 20, 2011 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on January 27, 2011. On January 20, 2011, the Center also transmitted an email to the parties in both Finnish and English language regarding the language of proceedings. On January 27, 2011, the Complainant confirmed its request that English be the language of proceeding. The Respondent did not comment on the language of proceeding by the specified due date.
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 the Respondent of the Complaint, and the proceedings commenced on January 31, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was February 20, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 21, 2011.
The Center appointed Jon Lang as the sole panelist in this matter on March 1, 2011. 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
Delta Air Lines, Inc. (the Complainant) is a worldwide leader in air transportation services and one of the world’s largest commercial airlines, generating billions of dollars in annual revenue. Its services, including those of its affiliates, range from air transportation and shipping to the provision of arena facilities for exhibitions, tracking and monitoring of baggage, cargo, mail, freight, package shipments and aircraft parts, in-flight entertainment services and vacation-planning services.
The Complainant is the owner of several worldwide trademark registrations, consisting entirely of or which incorporate the designation DELTA including U.S. Registration No. 0654915 for the mark DELTA, (which issued on November 19, 1957) and U.S. Registration No. 0963228 for the mark DELTA AIR LINES AND DESIGN, (which issued on July 3, 1973).
The disputed domain name (the “Domain Name”) was registered on November 28, 2009. 5. Parties’ Contentions A. Complainant
Without the consent of the Complainant, the Respondent is using the Domain Name to direct Internet users to commercial websites which further direct Internet users to the websites of the Complainant’s direct competitors. For instance, the website to which the Domain Name points contains links such as “Cheap Air Tickets”, “Airline Ticket”, and “Delta Airlines”. These links divert Internet users to web pages featuring links to Delta’s direct competitors, e.g. Emirates Airline, American Airlines and Jet Airways.
On December 17, 2010, upon discovery of the Respondent’s registration of the Domain Name, the Complainant sent (to the contact provided by the privacy service used by the Respondent) a cease-and-desist letter to which the Respondent failed to reply. Confusingly similarity
The Domain Name incorporates the Complainant’s DELTA mark in its entirety and adds the generic term “assist”. The DELTA mark is the principal element of the Domain Name which is sufficient to establish confusing similarity for purposes of the Policy. Lack of rights to or legitimate interests in the Domain Name
Without the authorisation or consent of the Complainant, the Respondent registered the Domain Name which is confusingly similar to the DELTA marks and is using the Domain Name to divert Internet traffic to generic web pages featuring links to websites offering for sale the services of the Complainant’s direct competitors. Such use demonstrates neither a bona fide offering of goods or services under the Policy nor a legitimate noncommercial or fair use.
The Complainant has not authorised, licensed or consented to the Respondent’s registration and use of a domain name incorporating the DELTA trademark, or any confusingly similar variation of the Complainant’s marks.
To the Complainant’s knowledge, there are no current trademark applications or registrations in the name of the Respondent for any mark incorporating DELTA anywhere in the world.
Nothing in the WhoIs information relating to the Domain Name indicates that the Respondent is commonly known by the name “Delta”.
The Respondent’s failure to respond to the allegations contained in the cease-and-desist letter referred to earlier (that the Respondent lacked legitimate interests in or rights to the Domain Name) amounts to “adoptive admission” of the allegations. Bad faith
The Respondent has registered a domain name confusingly similar to Complainant’s marks and used the Domain Name to divert Internet users to the Respondent’s website from which the Respondent is likely to earn click-through fees for each Internet user who selects one of the links. Moreover, the links on the Respondent’s website divert Internet traffic to websites that offer airline services for sale, in direct competition with the services offered by Complainant under its DELTA trademarks. Accordingly, there should be a finding of bad faith registration and use under the Policy.
The Respondent registered the Domain Name for the purpose of disrupting the business of a competitor.
The Respondent was clearly aware of the Complainant’s rights in its trademarks when the Domain Name was registered given that it incorporates the DELTA mark in its entirety and the associated website links to websites advertising airline services, which are in direct competition with those services offered by the Complainant.
Finally, the Complainant refers to the Respondent’s failure to deal with the cease-and-desist letter which was sent. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires a complainant to prove that the respondent has registered a domain name which is
(i) identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
A complainant must prove each of these three elements. A. Identical or Confusingly Similar
The mark DELTA forms the first and dominant part of the Domain Name (being followed by the generic term “assist”). Accordingly, the Domain Name is clearly confusingly similar to the Complainant’s Delta trademarks. In Dr. Ing. h.c. F. Porsche AG v. Rojeen Rayaneh,WIPO Case No. D2004-0488, it was said “[l]ong-established precedent has generally recognised confusing similarity where well-known trademarks have been adapted with a wide range of prefixes or suffixes”. The use of the word “assist” immediately after DELTA, a widely known trademark, far from distinguishes the Domain Name from the trademark. It could in fact increase the scope for confusion.
There is a clear possibility, if not likelihood that Internet users may be confused into thinking that the owner of the Domain Name is also the owner of the trademarks to which it is similar, or at least that there is some form of association between the Respondent and the Complainant. The inclusion in the Domain Name of the word, “assist” does nothing to reduce this confusion and may even add to the likelihood of confusion arising. For these reasons, the Panel finds that the Domain Name is confusingly similar to the Complainant’s trademarks. B. Rights or Legitimate Interests
The mere registration of a domain name does not give the owner a right or a legitimate interest in respect of that domain name. There must be something more. The Respondent is not authorised by or affiliated with the Complainant. The Respondent does not appear to be known by the Domain Name. A respondent can however demonstrate rights to or legitimate interests in a domain name in other ways. For instance, a respondent can try and show a legitimate noncommercial or fair use of a domain name, without intent for commercial gain to misleadingly divert consumers. But given the use made of the Domain Name, noncommercial or fair use would be difficult to demonstrate. In any event, the noncommercial or fair use must be carried on without intent for commercial gain to misleadingly divert consumers, which may well be difficult to demonstrate in the circumstances of this Complaint. A respondent can also show that it was using a domain name in connection with a bona fide offering of goods or services. However, it would be difficult to accept that promotion of competing commercial entities through a website to which a confusingly similar domain name points, is a bona fide offering of goods or services. In any event, the Respondent has advanced no argument in response to the Complaint. In fact it is difficult to imagine what the Respondent might say in the circumstances of this Complaint to justify registration and use of the Domain Name.
There is no evidence before this Panel that the Respondent has rights or legitimate interests in the Domain Name. There is no evidence before this Panel to contradict or challenge the contentions of the Complainant. This Panel therefore finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the Domain Name which, given the lack of a Response, has not been contradicted or challenged in anyway. The Panel therefore finds that this element too of paragraph 4(a) of the Policy is established. C. Registered and Used in Bad Faith
It seems clear that the Respondent was aware of the Complainant and its trademarks when it registered the Domain Name. Its manner of use puts this beyond any serious doubt. One way a complainant may demonstrate bad faith registration and use is to show that a respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website or of products or services on it. This appears to be the case here. Moreover, whatever the primary motive of the Respondent, it is clear that the Domain Name in the Respondent’s hands may well be disruptive to the Complainant’s business.
In all the circumstances, this Panel finds that, for the purposes of the Policy, there is evidence of both registration and use of the Domain Name 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.
Jon Lang
Sole Panelist
Dated: March 7, 2011
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