The Complainant is Delta Air Lines, Inc. of Atlanta, Georgia, United States of America ("USA"), represented by Wellborn, Wallace & Woodard, LLC, USA.
The Respondents are amit goel, dream travel inc. of Uttar Pradesh, India; Raj Arora of Delhi, India; and Domains By Proxy, LLC of Scottsdale, Arizona, USA. 2. The Domain Names and Registrar
The disputed domain names (the "first Domain Name") and (the "second Domain Name") are registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 18, 2015, naming Domains By Proxy, LLC, as the Respondent for the first Domain Name and Raj Arora as the Respondent for the second Domain Name.
The Center transmitted its request for registrar verification to the Registrar on June 18, 2015. The Registrar replied on June 19, 2015, confirming that it was the Registrar of both Domain Names and that Raj Arora was the registrant of the second Domain Name, but identifying dream travel inc. as the registrant of the first Domain Name. The Registrar provided the full contact details held on its WhoIs database in respect of the Domain Names. In the case of the first Domain Name these identified the registrant name as amit goel and the registrant organization as dream travel inc.
The Registrar also confirmed that the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP") applies to the Domain Names, that they would remain locked during this proceeding subject to expiry, and that the registration agreement is in English. The Registrar stated that the first Domain Name has been registered to the current registrant since at least June 19, 2015, and expires on March 10, 2016; and that the second Domain Name has been registered to the current registrant since at least April 13, 2015 and expires on April 13, 2016.
The Center invited the Complainant by email of June 24, 2015, to amend the Complaint in the light of the information provided by the Registrar identifying the registrant of the first Domain Name. The Complainant filed an amended Complaint on July 1, 2015.
The Center verified that the Amended Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondents of the Complaint, and the proceedings commenced on July 3, 2015. The courier reported successful delivery of the notification to all Respondents. In accordance with paragraph 5(a) of the Rules, the due date for Response was July 23, 2015. The Respondents did not submit any response. Accordingly, the Center notified the Respondents' default on July 24, 2015.
On July 27, 2015, the Center informed the Parties that it noted that the Complaint related to two Domain Names with seemingly distinct registrants and the Complainant's submissions regarding the identity of the Respondents, commonality, and requested consolidation. The Center considered that there were prima facie grounds to warrant putting the request for consolidation to the Panel and that it would proceed accordingly.
The Center appointed Jonathan Turner as the sole panelist in this matter on August 7, 2015. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, subject to the issue of consolidation discussed below; that it was duly notified to the Respondents; and that it has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules.
On August 7, 2015, following the appointment of the Panel, the Respondent, Raj Arora, sent an email to the Center stating "I was an employee there for very short time period, and already left the organization. Just open my email and saw your mails. and don't know anything. so please request you to stop sending me the emails." 4. Consolidation
As established by previous decisions of UDRP panels, such as Speedo Holdings B.V. v. Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons,WIPO Case No. D2010-0281, consolidation of multiple domain name disputes under paragraphs 3(c) or 10(e) of the Rules may be appropriate, even where differently named domain name registrants are involved, if the circumstances indicate that common control is being exercised over the disputed domain names or the websites to which they resolve, and consolidation is procedurally efficient as well as fair and equitable to all parties.
In this case, the Domain Names are almost identical, were both registered by registrants with addresses in the Greater Delhi area with the same Registrar in the USA, and resolve to very similar web pages. The Respondents have not disputed the Complainant's allegation that the Domain Names are registered by the same or closely-related individuals or entities. The Panel also notes the email from the registrant of the second Domain Name stating that he was an employee "there" for a very short time period and had left "the organization".
In all the circumstances, the Panel considers that there is a sufficiently close connection between the Respondents to justify consolidation as requested by the Complainant in accordance with paragraph 10(e) of the Rules. It is also procedurally efficient, fair and equitable, since the issues raised by the registrations are similar. 5. Factual Background
The Complainant is one of the world's largest international airlines, with services to 330 destinations in 65 countries on six continents for more than 160 million customers and an annual revenue in excess of USD 36 billion per year. The Complainant has operated under the marks DELTA and DELTA AIR LINES since 1934 and has registrations for these marks in the USA, including one for DELTA AIR LINES dating back to 1950. The Complainant advertises and sells its services in part through its website at "".
The Domain Names resolve to websites which display photographs of the Complainant's aircraft and purport to sell tickets for its services. 6. Parties' Contentions A. Complainant
The Complainant contends that the Domain Names are identical or confusingly similar to its marks DELTA and DELTA AIR LINES, pointing out that they include the entirety of its mark DELTA and differ from its mark DELTA AIR LINES only in the substitution of the figure "1" for the visually similar letter "l", apart from the generic Top-Level Domain (gTLD) suffix and the omission of spaces.
The Complainant submits that the Respondents have no rights or legitimate interests in respect of the Domain Names. It states that it has not granted any permission to the Respondents to use the Domain Names. It maintains that the Respondents' use of the Domain Names has no connection with a bona fide offering of goods or services, that the Respondents have not been commonly known by the Domain Names or corresponding names, and that they are not making any legitimate noncommercial or fair use of the Domain Names.
The Complainant alleges that the Domain Names were registered and are being used in bad faith. In particular, the Complainant submits that the Domain Names were registered and have been used for the purpose of attracting Internet users to the Respondents' websites for commercial gain by creating a likelihood of confusion with the Complainant's marks.
The Complainant requests a decision that the Domain Names be transferred to it. B. Respondents
As stated above, the Respondents did not reply to the Complainant's contentions. 7. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove: (i) that the Domain Names are identical or confusingly similar to a mark or marks in which it has rights; (ii) that the Respondents have no rights or legitimate interests in respect of the Domain Names; and (iii) that the Domain Names have been registered and are being used in bad faith. It is appropriate to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondents' default in failing to file a response. This includes the acceptance of plausible evidence of the Complainant which has not been disputed. A. Identical or Confusingly Similar
The Panel finds on the evidence that the Complainant has registered and unregistered rights in the marks DELTA and DELTA AIR LINES.
The Panel finds that the Domain Names are confusingly similar to these marks. Apart from the omission of spaces between words and the addition of the gTLD suffix, which can normally be discounted in this comparison, the Second Domain Name differs from the Complainant's mark DELTA AIR LINES only in the substitution of the number "1" for the visually similar letter "l"; while the First Domain Name only differs in this respect and the omission of the plural "s". Both Domain Names comprise the distinctive mark DELTA together with the generic elements "airline" or "airlines" and the gTLD suffix. In short, they are typosquats. The Panel has no doubt that Internet users are liable to be confused by these Domain Names.
The first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
Although the position is not clear on the evidence, the Panel will assume in the Respondents' favour that they are or were selling tickets for the Complainant's services through their websites located by the Domain Names.
As noted in paragraph 2.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), many panels have followed the guidance in the Oki Data decision, as to the circumstances in which a business may be regarded as making a bona fide offering of goods or services, and hence as having a legitimate interest in the domain name in accordance with paragraph 4(c)(i) of the UDRP, when it uses a domain name corresponding to a supplier's mark to locate a website advertising the resale of that supplier's products.
According to that guidance, a business using such a domain name in this way may have a legitimate interest, provided that the following conditions are satisfied: that it is actually offering the products or services at issue; that the website at the domain name is used to promote only those products or services; that the website accurately and prominently discloses the true relationship between the registrant and the supplier, and that the registrant does not attempt to register all domain names that reflect the supplier's mark.
In this case, the Respondents' websites did not accurately and prominently disclose the Respondents' true relationship with the Complainant. On the contrary, the content of the websites in combination with the Domain Names implied that they were websites of the Complainant or its authorized agents. There was no statement disabusing Internet users of this impression and making it clear (in accordance with the fact, as stated by the Complainant and accepted by the Panel) that the Respondents had no permission from the Complainant to use the Domain Names.
In these circumstances, the Respondents cannot be regarded as making a bona fide offering within the meaning of paragraph 4(c)(i) of the UDRP so as to give them rights or legitimate interests in the Domain Names.
Furthermore, it is evident that the Respondents are not commonly known by the Domain Names and that they are not making a legitimate noncommercial or fair use of the Domain Names.
In the circumstances there is no other basis on which the Respondents could claim a right or legitimate interest in the Domain Names. The second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith
As stated above, the Panel finds that the Respondents' websites were liable to mislead Internet users into believing that they were websites of the Complainant or its authorized agents. In all the circumstances, the Panel considers that it was also the Respondents' intention so to mislead customers.
Accordingly, the Panel finds that by using the Domain Names the Respondents have intentionally attempted to attract Internet users to their websites for commercial gain by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of those websites.
Under paragraph 4(b)(iv) of the UDRP this constitutes evidence that the Domain Names were registered and are being used in bad faith. There is no material on the file which would displace this presumption. In all the circumstances, the Panel finds that the Domain Names were registered and are being used in bad faith. The third requirement of the UDRP is satisfied.
The Panel concludes that all three requirements of the UDRP are satisfied. The Domain Names should be transferred to the Complainant. 8. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names and be transferred to the Complainant.
Jonathan Turner
Sole Panelist
Date: August 21, 2015
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