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 Walter Karen of Waco, Texas, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with Gandi SARL (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 31, 2012. On October 31, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 31, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact for the disputed domain name.
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 November 6, 2012. Due to an error in the Electronic Notification of Complaint, formal notification was sent again, electronically, on November 29, 2012, with the Response due date set for December 19, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 20, 2012.
The Center appointed Warwick A. Rothnie as the sole panelist in this matter on January 11, 2013. 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
The Complainant is a provider of air transportation services worldwide. According to the Complaint, it carriers more than 160 million customers each year to more than 340 destinations in 61 countries on 6 continents. It has some 80,000 employees. It offers its customers more than 13,000 flights daily from hubs in Amsterdam, Atlanta, Cincinnati, Detroit, Memphis, Minneapolis-St Paul, New York-JFK, Paris-Charles de Gaulle, Salt Lake City and Tokyo-Narita. It provides services for its customers in other places through a network of worldwide alliances including the SkyTeam global alliance.
It has a large number of registered trademarks around the world for DELTA or which incorporate that term. These include:
- United States (US) Trademark No. 0970418 for DELTA AIRLINES in relation to air transportation in International Class 39, registered on October 9, 1973;
- United Kingdom (UK) Trademark No. 1275452 for DELTA in relation to a range of air transport services in International Class 39 registered from September 18, 1992;
- registered trademarks in France, Nos. 1526546 and 1660227 for, respectively, DELTA and DELTA AIR LINES; and
- Community Trademark No. 000132290 for DELTA in relation to air transportation services in International Class 39 registered on June 18, 1996.
According to the Registrar, the disputed domain name was created on September 3, 2012.
On September 24, 2012, the Complainant received an email from a person inquiring whether a job application made at the website to which the domain name resolved (the “A website”) could be trusted.
According to the printout of the Aviarec website included in Annex H to the Complaint, Aviarec is a recruitment company specializing in recruitment and training for the aviation industry. The website featured the logos of the Complainant and Virgin Atlantic prominently. It stated that “We are an official training an recruitment partner for Airline Companies”. Under the heading “Introduction”, amongst other things, it stated:
“Delta Airlines is currently recruiting Aviation Crew for its bases in the Asia (sic), UK, Ireland and across Europe.
Delta Airlines works with approved Cabin Crew Training schools to source candidates to operate as Cabin Crew. Aviarec is approved to conduct Boeing 737-800 Training Courses […] which will train suitable applicants to operate on Delta Airlines aircraft. Contracted Aviation Crew agencies, we hold contracts to supply Aviation Crew to a number of airlines including Delta Airlines […].”
The website then offered various training courses for which an applicant would be required to pay GBP 450 on registration. According to the Complaint, additional fees up to GBP 2,000 could become payable.
The Complainant denies that Aviarec is in any way associated with it or authorized to provide training or recruitment services on its behalf. Following complaints from the Complainant to the ISP hosting the website, the Aviarec website was disabled.
Subsequently, the Complainant became aware of an advertisement on the website at “’’ posted by Aviarec Limited. This advertisement was entitled “WANTED FOR IMMEDIATE EMPLOYMENT (Airline Ground Crew / Cabin Crew)” and stated “Aviarec is an approved Delta Airlines recruitment partner and we are currently recruiting for an exciting Airline Cabin Crew / Airline Crew position to operate on Delta Airlines aircraft”. The advertisement then directed prospects to the website which the disputed domain name resolved to.
A person who applied to register for one of the positions advertised on the website received an email requiring them to pay GBP 450 to complete registration for the training course. The website which the disputed domain name resolved to resembled the Complainant’s own careers page. As with the Aviarec website, this website has been disabled following complaint by the Complainant.
The WhoIs details for corresponded with the publicly available WhoIs details for the disputed domain name. 5. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest the Respondent of the disputed domain name, the Complainant must demonstrate each of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the 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.
Ad indicated above, no response has been filed. The Complaint has been served, however, on the physical and electronic coordinates specified in the WhoIs record (and confirmed as correct by the Registrar). Accordingly, the Panel finds that the Complaint has been properly served on the Respondent.
When a respondent has defaulted, paragraph 14(a) of the Rules requires the Panel to decide the Complaint in the absence of exceptional circumstances. Accordingly, paragraph 15(a) of the Rules requires the Panel to decide the dispute on the basis of the statements and documents that have been submitted and any rules and principles of law deemed applicable. A. Identical or Confusingly Similar
The first element that the Complainant must establish is that the disputed domain name is identical with, or confusingly similar to, the Complainant’s trademark rights.
There are two parts to this inquiry: the Complainant must demonstrate that it has rights in a trademark and, if so, the disputed domain name must be shown to be identical or confusingly similar to the trademark.
The Complainant has proven ownership of at least the registered trademarks for DELTA and DELTA AIR LINES referred to in section 4 above.
On the question of identity or confusing similarity, what is required is simply a comparison and assessment of the disputed domain name itself to the Complainant’s proved trademarks: see for example, Disney Enterprises, Inc. v. John Zuccarini, Cupcake City and Cupcake Patrol,WIPO Case No. D2001-0489; IKB Deutsche Industriebank AG v. Bob Larkin,WIPO Case No. D2002-0420. This is different to the question under trademark law which can require an assessment of the nature of the goods or services protected and those for which any impugned use is involved, geographical location or timing. Such matters, if relevant, may fall for consideration under the other elements of the Policy.
In undertaking that comparison, in the present circumstances it is permissible to disregard the “.com” component of the disputed domain name as a functional aspect of the domain name system: Telstra Corporation Limited v. Ozurls,WIPO Case No. D2001-0046; Ticketmaster Corporation v. DiscoverNet Inc.,WIPO Case No. D2001-0252.
The disputed domain name plainly conveys the notion of jobs at an airline called Delta so there can be no doubt that the disputed domain name is confusingly similar to the Complainant’s DELTA and DELTA AIR LINES trademarks. Accordingly, the Panel finds that the requirement under the first limb of the Policy is satisfied. B. Rights or Legitimate Interests
The second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy provides that the following circumstances can be situations in which a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial 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.
These are illustrative only and are not an exhaustive listing of the situations in which a respondent can show rights or legitimate interests in a domain name.
The onus of proving this requirement, like each element, falls on the Complainant. Panels have recognized the difficulties inherent in disproving a negative, however, especially in circumstances where much of the relevant information is in, or likely to be in, the possession of the respondent. Accordingly, it is usually sufficient for a complainant to raise a prima facie case against the respondent under this head and an evidential burden will shift to the respondent to rebut that prima facie case. See e.g., WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.1.
On this part of the case, the Complainant states that it has not authorized, licensed or consented to the Respondent registering the disputed domain name. The Complainant further states it has not authorized the Respondent or Aviarec (if different) to provide training services on its behalf and has not in the past sourced, and will not in the future be sourcing, employment candidates through the Respondent or Aviarec.
The disputed domain name is not apparently derived from the Respondent’s name and, so far as the Complainant is aware, the Respondent does not have any registered trademarks for DELTA.
Taking into account the assertion on the website to which the disputed domain name resolved that the website operator “is an approved Delta Airlines recruitment partner” which, according to the Complainant, is false, these circumstances combine so that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
As the Respondent did not file a Response, the Respondent has not sought to rebut that prima facie case.
Accordingly, the Panel finds that the Complainant has established the second requirement under the Policy. C. Registered and Used in Bad Faith
Under the third requirement of the Policy, the Complainant must establish that the disputed domain name has been both registered and is being used in bad faith by the Respondent.
The instances of bad faith set out in paragraph 4(b) of the Policy are examples only, intended to illustrate types of conduct which is caught by the Policy. See Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624. Paragraph 4(b)(iv) nonetheless specifies as one example of bad faith:
by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.
This example illustrates that bad faith for the purposes of the Policy can lie in using another person’s trademark without permission to take advantage of its significance as a trademark or source identifier.
In this case, the Respondent uses the disputed domain name to derive revenue from a business providing training services. By reason of the resemblance of the disputed domain name to the Complainant’s trademarks, Internet users are likely to think those services are suitable for training for employment with the Complainant. Further, the website to which the disputed domain name resolved asserted, apparently contrary to the fact, that those services were approved by the Complainant. Given this and the resemblance of the disputed domain name to the Complainant’s trademarks, the Panel finds that the disputed domain name was being used in bad faith. But for the Complainant’s objections, it would still being used in that way and continues to be available to the Respondent for deployment in the future in the same or similar fashion.
As the time between registration of the disputed domain name and its use in this manner was so short, the Panel has no difficulty in inferring that the disputed domain name was also registered for the purpose it was being used for and so in bad faith also.
The Respondent has not sought to justify his registration or use of the disputed domain name or to deny the Complainant’s allegations that he and the services offered through his websites have no association with or endorsement or approval by the Complainant.
Accordingly, the Panel finds that the Complainant has established the third requirement under the Policy. 6. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, , be transferred to the Complainant.
Warwick A. Rothnie
Sole Panelist
Date: January 25, 2013
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