The Complainant is Delta Air Lines, Inc. of Atlanta, Georgia, United States of America (“United States”) represented by Wellborn & Wallace, LLC, United States.
The Respondent is Mark Anthony, MAA Travels of New Delhi, India. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 19, 2017. On January 19, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 20, 2017, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 23, 2017. In accordance with the Rules, paragraph 5, the due date for Response was February 12, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 13, 2017.
The Center appointed Debrett G. Lyons as the sole panelist in this matter on February 15, 2017. 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 facts relevant to the decision in this case are that:
(1) the Complainant provides travel and transportation services by reference to the trade mark DELTA;
(2) the trade mark DELTA is the subject of United States Patent and Trademark Office (“USPTO”) Registration No. 065915, filed October 17, 1956, registered November 19, 1957, presently standing in the name of the Complainant;
(3) the disputed domain name was registered on October 20, 2016;
(4) the disputed domain name resolves to a website showing use of the trade mark, offering travel and transportation services; and
(5) the Complainant alleges that there has been no commercial or other relationship between the Parties and the Complainant has not authorized the Respondent to use the trade mark or to register any domain name incorporating the trade mark. 5. Parties’ Contentions A. Complainant
The Complainant asserts trade mark rights in DELTA and alleges that the disputed domain name is identical or confusingly similar to the trade mark.
The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant alleges that the Respondent registered and is using the disputed domain name in bad faith.
The Complainant accordingly petitions the Panel to order transfer of the disputed domain name. B. Respondent
The Respondent did not submit a Response. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trade mark 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.
It is the responsibility of the Panel to consider whether the requirements of the Policy have been met, regardless of the fact that the Respondent failed to submit a response. Having considered the Complaint and the available evidence, the Panel finds the following: A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – a threshold investigation into whether a complainant has rights in a trade mark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to the trade mark.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trade mark rights. It is accepted that a trade mark registered with a national authority is evidence of trade mark rights for the purposes of the Policy.1 The Complainant provides evidence of registration of the trade mark DELTA with the USPTO and the Panel accepts that the Complainant has trade mark rights.
The generic Top-Level Domain (“gTLD”) “.com” can (generally and in this case) be disregarded for the purposes of comparison.2 The disputed domain name takes the trade mark and adds to it the words “web” and “dealz”, the latter being a common, deliberate misspelling of the word “deals”. The trade mark is the distinctive part of the disputed domain name. Within the context of the services provided under the trademark, the added words are purely descriptive and of no source-distinguishing value.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trade mark and so finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant has the burden to establish that the Respondent has no rights or legitimate interests in the disputed domain name. Nevertheless, it is well-settled that the Complainant need only make out a prima facie case, after which the onus shifts to the Respondent to rebut such prima facie case by demonstrating rights or legitimate interests.3
Notwithstanding the lack of a response to the Complaint, paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
“(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.”
There is no evidence that the Respondent has trade mark rights in the disputed domain name. The publicly available WhoIs data identifying the Respondent as the registrant does not support any conclusion that the Respondent might be commonly known by the disputed domain name. There is no relationship between the Parties, and the Complainant has not authorized the Respondent to use its trade mark. The evidence is that the disputed domain name resolves to a website showing use of the trademark where travel and transportation services can be purchased. Those services are said to be offered by “a US based travel agent” and an address in the State of Virginia and a United States phone number are given, notwithstanding that the WhoIs data shows both the disputed domain name registrant and the registrant organization to be in New Delhi, India.
The capacity of the resolving website to confuse Internet users and draw them away from the Complainant’s business establishes to the Panel’s satisfaction that there has not been a bona fide offering of goods or services, or a legitimate noncommercial use of the disputed domain name.
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and that the Respondent in failing to reply to the Complainant’s contentions has not rebutted such prima facie case.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and so the Complainant has satisfied the second element of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out circumstances which shall be evidence of the registration and use of a domain name in bad faith. They are:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 web site or location or of a product or service on your web site or location.”
The Panel finds that the Respondent’s actions fall squarely under paragraph 4(b)(iv). The Panel has already found the disputed domain name to be confusingly similar to the trade mark. The Panel further finds that the Respondent intends to gain commercially from the resultant confusion which brings traffic to the resolving and competitive webpage. The Panel finds that, in terms of paragraph 4(b)(iv) of the Policy, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to an online location by creating a likelihood of confusion with the Complainant’s trade mark as to the source or affiliation of that location.
Accordingly, the Complainant has satisfied the third and final limb of the Policy. 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.
Debrett G. Lyons
Sole Panelist
Date: February 28, 2017
1 See paragraph 1.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
2 Ibid. at paragraph 1.2.
3 See, for example, Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624.
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