The Complainant is JetBlue Airways Corporation of Long Island City, New York, United States of America ("United States"), represented by Frankfurt Kurnit Klein & Selz, PC, United States.
The Respondent is Qiu Yumei, Qiuyumei of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name is registered with 1API GmbH (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 20, 2017. On December 21, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 22, 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 3, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 23, 2018. The Respondent submitted informal communications (which may have been auto-replies) on January 3 and 25, 2018 but did not submit any formal response. Accordingly, on January 25, 2018, the Center notified that it would proceed to the Panel appointment.
The Center appointed Douglas Clark as the sole panelist in this matter on February 14, 2018. 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 an airline that operates in the United States and also flies to destinations in the Caribbean, Mexico and South America. The Complainant owns numerous trademark registrations containing JETBLUE in the United States including registration nos. 2,451,995, 2449,988 and 3,163,120, which were registered respectively on May 15, 2001, May 8, 2001 and October 24, 2006.
The Respondent is an individual based in China.
The disputed domain name was registered on August 20, 2017 and resolves to a webpage that contains advertisements for casinos and pornographic content in Chinese. 5. Parties' Contentions A. Complainant
The Complainant's contentions are as follows:
Identical or confusingly similar
The Complainant contends that the disputed domain name is confusingly similar to the Complainant's registered trademark JETBLUE as the disputed domain name incorporates the Complainant's JETBLUE mark. The inclusion of a geographic descriptor ("cn") and the addition of the generic Top-Level Domain ("gTLD") do not avoid the finding of confusing similarity.
No rights or legitimate interests
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any license or trademark registration for JETBLUE. It, therefore, has no rights or legitimate interests in the disputed domain name.
The Domain name was registered and is being used in bad faith
Before acquiring the disputed domain name, it is highly likely that the Respondent knew of the Complainant's rights in the JETBLUE mark because of its worldwide reputation. B. Respondent
The Respondent submitted informal communications (which may have been auto-replies) on January 3 and 25, 2018 but did not submit any formal response. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name is confusingly similar to the Complainant's JETBLUE trademark.
It incorporates the Complainant's registered trademark JETBLUE in its entirety together with the generic geographical designation "cn" (the abbreviation of China). According to previous UDRP decisions, the "addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element." (See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0")).
The Panel notes that the Complainant does rely on any registered trademarks for JETBLUE in China where the Respondent is located. The ownership of a trademark is generally considered to be a threshold standing issue. The location of the trademark, its date of registration (or first use) and the goods and/or services for which it is registered, are all irrelevant for the purpose of finding rights in a trademark under the first element of the UDRP. These factors may however bear on a panel's further substantive determination under the second and third elements. (See section 1.1.2 of WIPO Overview 3.0).
The first element of paragraph 4(a) of the Policy is therefore satisfied. B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests.
Section 2.1 of the WIPO Overview 3.0 provides:
"While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element."
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent has not responded to the Complaint to present any evidence to establish rights or legitimate interests under these heads. None of the circumstances in paragraph 4(c) of the Policy are present in this case.
Considering the absence of a response by the Respondent to the Complainant's contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant's trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith
The Panel finds that the disputed domain name was registered in bad faith and is being used in bad faith.
This case falls with paragraph 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
"(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online 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."
The links on the site suggest the Respondent is making a commercial gain from the site.
Further, the links to pornographic or semi-pornographic materials tarnish the JETBLUE trademark. This has been found in previous UDRP cases to constitute evidence of registration and use of a domain name in bad faith. (See WIPO Overview 3.0, section 3.12).
The third part of paragraph 4(a) of the Policy is therefore satisfied. 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.
Douglas Clark
Sole Panelist
Date: March 6, 2018
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