The Complainant is JetBlue Airways Corporation, United States of America (“United States”), represented by Frankfurt Kurnit Klein & Selz, PC, United States.
The Respondent is Domain Administrator, PrivacyGuardian.org, United States / D. Taylor, Northpoint, Inc, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 19, 2019. On November 20, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 20, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 21, 2019 providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 21, 2019. The Center verified that the Complaint together with the amended 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 November 28, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 18, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 20, 2019. The Center appointed W. Scott Blackmer as the sole panelist in this matter on January 3, 2020. 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 the sixth largest United States airline (measured by passenger volume) and is ranked as a United States Fortune 500 company, with 2018 revenue of approximately USD 7.7 billion. It is organized as a corporation under the law of Delaware, United States and is headquartered in New York City, with additional corporate offices in the states of Utah and Florida. Its shares are traded on the NASDAQ stock exchange. Founded in 1998, the Complainant has operated since February 2000 under the name “JetBlue”. The Complainant operates over 1,000 flights daily in the United States and the Americas and advertises extensively in print, online, in social media, and through the travel industry, spending over USD 500 million in the past two years to market the JETBLUE brand. The record includes substantial evidence of the Complainant’s media recognition and awards. The Complainant holds 43 United States trademark registrations comprising the term JETBLUE, alone or in combination with other words or design elements, as well as multiple similar registrations in other countries (collectively, the “JETBLUE marks”). These include United States Trademark Registration Number 2449988 (registered May 8, 2001) for JETBLUE as a standard character mark. According to the Registrar, the Domain Name was created on November 12, 2003; the Registrar does not reveal when the current registrant acquired the Domain Name. It was registered in the name of a domain privacy service at the time this dispute arose, but the Registrar identified the registrant as the Respondent D. Taylor of the organization Northpoint, Inc., with a post office box in Roswell, Georgia, United States. The online database of the Georgia Corporations Division lists a Georgia corporation by that name that was dissolved in 2008. The Panel notes that the Respondent appears to be the same “D. Taylor, Northpoint, Inc.” that participated as the Respondent in WHM L.L.C. v. Northpoint, Inc.,WIPO Case No. D2005-1134. There, the Respondent identified itself as an Internet advertiser that “acquires generic domain names for their keyword relevance to selected search terms” and uses them for web portals linking to third-party sites in return for commission payments. The Respondent was found by the three-member panel to have registered and used the disputed domain name in bad faith. The Complainant indicates that for a time the Domain Name redirected to a website at “www.traveldealsnetwork.com”, a portal for a large variety of third-party travel sites leading to advertising and reservation portals for hotels, flights, cruises, theme parks, and other travel services and destinations. Similarly, the few screen captures available on the Internet Archive’s Wayback Machine show that the Domain Name was typically associated with pay-per-click (“PPC”) advertising portals focused on travel, redirecting to sites such as “www.traveldeals.com” or simply redirected to “www.mywebaddress.com”, a domain name broker and website designer, which was also shown in the contact details provided by the Registrar for the Domain Name. At the time of this Decision, the Domain Name does not resolve to an active website. 5. Parties’ Contentions A. Complainant The Complainant asserts that the Domain Name is confusingly similar to its JETBLUE marks and that the Respondent has neither permission to use the marks nor evident rights or legitimate interests in the Domain Name. The Complainant concludes that the Respondent evinced bad faith in using the Domain Name for a website advertising travel services, exploiting the Complainant’s well-known marks associated with air travel, and likely registered the Domain Name for the purpose of reselling it to the Complainant or preventing the Complainant from reflecting its marks in a corresponding domain name. The Complainant speculates that the Respondent anticipated that the Complainant would use “Jetblue Travel” as a future mark, given its history of combining JETBLUE with other relevant words to form trademarks. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following: (i) the 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 domain name; and (iii) the domain name has been registered and is being used in bad faith. Under paragraph 15(a) of the Rules, “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. A. Identical or Confusingly Similar The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7. The Domain Name incorporates the Complainant’s coined JETBLUE mark in its entirety and adds the dictionary word “travel”, which does not avoid confusion. As the Complainant observes, this is particularly unlikely to avoid confusion where the mark is associated with an airline. The Panel finds the Domain Name confusingly similar to the Complainant’s mark. As in most cases, the generic Top-Level Domain (“gTLD”) “.com” is disregarded. Id., section 1.7. The Panel concludes, therefore, that the Complainant has established the first element of the Complaint. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the Respondent may establish rights or legitimate interests in the Domain Name, by demonstrating any of the following: (i) before any notice to it of the dispute, the Respondent’s 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) that the Respondent has been commonly known by the Domain Name, even if it has acquired no trademark or service mark rights; or (iii) the Respondent is 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. Since a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. The Respondent has not done so here, and the Complainant shows trademark rights, a lack of permissive use to incorporate the Complainant’s mark, and the Respondent’s use of the Domain Name for PPC advertising apparently trading on the Complainant’s well-known mark. Accordingly, the Panel concludes that the Complainant has established the second element of the Complaint. C. Registered and Used in Bad Faith The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following suggested by the Complainant (in which “you” refers to the registrant of the domain name): “(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 (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 Complaint is rather poorly documented. It does not attach all of the annexes cited in the Complaint, for example, or include historical WhoIs evidence showing when this Respondent acquired the Domain Name, or demonstrate that the Complainant’s mark was well known in 2003 when the Domain Name was created. Nevertheless, the Panel has been able to corroborate from publicly available sources such as Wikipedia, annual reports filed with the United States Securities and Exchange Commission, and the Internet Archive that the Complainant’s mark was nationally well known in 2003 and that the Domain Name was used at least sporadically for travel-oriented PPC advertising portals. The Panel finds it probable, therefore, that the Respondent was aware of the Complainant’s mark, even if the Respondent acquired the Domain Name as early as 2003, and selected it for its value in suggesting an association with the Complainant, as the term “jetblue” is not generic and “travel” is a dictionary word logically related to an airline. The use of the Domain Name for PPC advertising portals is consistent with the illustration of bad faith found in the Policy, paragraph 4(b)(iv). The Respondent has not come forward to offer an alternative, legitimate reason for choosing the Domain Name but has simply stopped directing the Domain Name to a PPC portal since this dispute arose. The other arguments for finding bad faith advanced by the Complainant are not persuasive. It is speculative to imagine that the Respondent considered that the Complainant might seek to establish “JetBlue Travel” as a trademark, and it does not appear that the Complainant has done so. There is no evidence that the Respondent has tried to sell the Domain Name to the Complainant, or that the Respondent has engaged in a pattern of preventing trademark owners from registering domain names corresponding to their trademarks. But it suffices that the Domain Name incorporates a well-known, distinctive mark that the Respondent has used for advertising portals, as outlined above, and the Panel accordingly finds bad faith within the meaning of the Policy. The Panel concludes that the third element of the Complaint has been established. 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 Domain Name W. Scott Blackmer
Sole Panelist
Date: January 20, 2020
Full & Egal Universal Law Academy