The Complainant is Delta Air Lines, Inc. of Atlanta, Georgia, United States of America (“USA”), represented by Ladas & Parry, USA.
The Respondent is Anatoliy Yerokhin of Zaporozhye, Ukraine. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 8, 2013. On January 8, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 8, 2013, 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 the Respondent of the Complaint, and the proceedings commenced on January 16, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was February 5, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 6, 2013.
The Center appointed Andrew F. Christie as the sole panelist in this matter on February 12, 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 one of the world’s largest commercial airlines, serving more than 160 million customers each year to more than 340 destinations in 61 countries on six continents. It employs more than 80,000 employees worldwide and operates a mainline fleet of more than 700 aircraft, offering more than 13,000 daily flights with hubs in Europe, the USA and Japan.
The Complainant is the owner of many registrations, including word mark registrations, for the trademarks DELTA and DELTA AIR LINES throughout the world, including in Ukraine. These trademark registrations date from at least as early as 1950.
The disputed domain name was registered on September 14, 2006. It currently resolves to a website which purports to be an official website of the Complainant. This website contains extensive information about the Complainant, including its company history, flight schedules and alleged discounting, amongst other topics. It also contains links that redirect Internet users to other websites that advertise and sell the services of the Complainant’s competitors.
On November 5, 2012, the Complainant sent a cease and desist letter to the Respondent, requesting transfer of the disputed domain name to the Complainant by November 12, 2012. The Respondent did not respond to this letter. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to its DELTA and DELTA AIR LINES trademarks because it incorporates them in their entireties and appends the generic term “homepage” thereto. The addition of the generic top-level domain (gTLD) “.com” serves no purpose in distinguishing the disputed domain name from the Complainant’s trademarks because gTLDs are a functional necessity rather than an arbitrary trademark choice.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name because: (i) it registered it without the Complainant’s authorization or consent; (ii) it is using it to divert Internet traffic to websites offering for sale the services of the Complainant’s direct competitors, which is neither a bona fide offering of goods and services nor a legitimate noncommercial or fair use of the disputed domain name; (iii) the Complainant is not aware of any current trademark application or registration in the name of the Respondent for any trademark incorporating the designation DELTA or DELTA AIR LINES, and is therefore not commonly known by the disputed domain name; (iv) the Respondent is using the disputed domain name to divert Internet traffic to a website through which it identifies itself as the Complainant despite having no affiliation with it whatsoever; and (v) on November 5, 2012, the Complainant sent a cease and desist letter to the Respondent to which the Respondent did not respond, which amounts to the adoptive admission of the allegations of violation of the Complainant’s rights contained in the letter.
The Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith because: (i) the Respondent has registered a domain name that is confusingly similar to the Complainant’s DELTA and DELTA AIR LINES trademarks and has used it to divert Internet users to the Respondent’s website, where it likely garners click-through fees for each Internet user who selects one of the links; (ii) these links on the website to which the disputed domain name resolves further divert Internet traffic to websites that offer services in direct competition with the services offered by the Complainant under its DELTA and DELTA AIR LINES trademarks; (iii) the Respondent was clearly aware of the Complainant’s rights in its trademarks; (iv) the Respondent, who is in no way affiliated with the Complainant, has used the disputed domain name to divert Internet traffic to a website on which it identifies itself as the Complainant; and (vi) the Respondent’s failure to reply to the Complainant’s cease and desist letter amounts to adoptive admission of the allegations contained in that letter. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name incorporates the whole of the Complainant’s registered word trademark DELTA AIR LINES, with the addition of the word “homepage” and the gTLD identifier “.com”. This Panel finds the addition of the word “homepage” does not lessen the inevitable confusion of the disputed domain name with the Complainant’s trademark. This is especially so given that the website to which the disputed domain name resolves purports to identify itself as the Complainant and to sell its services. Accordingly, this Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Respondent is not a licensee of, or otherwise affiliated with, the Complainant, and has not been authorized by the Complainant to use its DELTA AIR LINES trademark. The Respondent has not provided any evidence that it has been commonly known by, or has made a bona fide use of, the disputed domain name, or that it has, for any other reason, rights or legitimate interests in the disputed domain name. The evidence provided by the Complainant shows that the disputed domain name is used to resolve to a website that falsely purports to be an official website of the Complaint, which contains extensive (and possibly sometimes inaccurate) information about the Complainant and provides click-through links to websites advertising the Complainant’s competitors and their services. According to the present record, the disputed domain name is not being used in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Accordingly, this Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The disputed domain name was registered many decades after the Complainant first registered its DELTA AIR LINES trademark. The evidence on the record provided by the Complainant with respect to the use of its trademark, combined with the absence of any evidence provided by the Respondent to the contrary, is sufficient to satisfy this Panel that, at the time the disputed domain name was registered, the Respondent most likely knew of the Complainant’s trademark and knew that it had no rights or legitimate interests in the disputed domain name. Furthermore, the evidence on the record provided by the Complainant with respect to the Respondent’s use of the disputed domain name indicates that the Respondent has used the disputed domain name to attract, for commercial gain, Internet users to a website by creating confusion with the Complainant’s trademark as to the affiliation of that website. For all these reasons, this Panel is satisfied that the disputed domain name has been registered and is being used in bad faith. 7. 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.
Andrew F. Christie
Sole Panelist
Date: February 25, 2013
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