The Complainant is American Airlines, Inc., United States of America (“United States”), represented by Greenberg Traurig, LLP, United States.
The Respondent is Withheld for Privacy Purposes, Privacy service provided by Withheld for Privacy ehf / Ballu Balwant, India.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 23, 2021. On September 24, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 24, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 26, 2021 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 October 2, 2021.
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 October 6, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 26, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 1, 2021.
The Center appointed Clive Duncan Thorne as the sole panelist in this matter on November 9, 2021. 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 BackgroundThe Complainant is the largest air carrier in the world and enjoys a reputation in the United States and internationally as a premier airline for business and leisure travelers. Prior to the COVID-19 pandemic, it and its affiliates served over 350 destinations in over 50 countries, with nearly 7,000 daily flights.
During it’s more than 90 year history the Complainant has developed name-recognition and goodwill and has become a household name. A significant component of its success has been its investment in its brand and intellectual property. For decades it has continuously used its brands AMERICAN, AMERICAN AIRLINES, AA (an abbreviation of AMERICAN AIRLINES), and AA.COM both alone and in connection with other words and designs. Its brands, trade marks and other intellectual property are the result of significant investment and are worth billions of dollars.
Over the past several decades the Complainant has used the above brand names alone or in combination with other words and designs in connection with its travel and transportation services, vacation booking services, travel agency services, travel reservation services, travel rewards and loyalty programs, and numerous other goods and services.
The Complainant owns and operates the domain names
The website “www.AA.com” (American’s Website) which has been used continuously since 1998 features not only general information about the Complainant and its services but is also for travelers to make and change travel reservations, hotel and car rental bookings, check in for flights and view flight status.
Screenshots from American’s Website are exhibited at Annex 6 to the Complaint. They show the prominent use and promotion of the AA marks for the Complainant’s services. As can be seen from Annex 7 it has been ranked as the number one website in the world for air travel. It can be seen from Annex 8 that the Complainant is active on social media and has over 2.5 followers on Facebook and 1.6 million followers of Twitter. The Complainant’s AA marks have achieved worldwide recognition.
It can be seen from Annex 8 that the Complainant is known by the mark AA where, by way of example, there is a promotional reference to “It’s like old times again -- AA begins Toronto service”.
The Complainant owns multiple trade mark registrations in the US for all of the above marks. Examples of those are set out in the Complaint including the following registrations which consist of the mark AA;
- AA No. 51492 Registered August 23, 1949
- AA No. 2356861 Registered June 13, 2000
- AA.COM No. 2339639 Registered April 11, 2000
- AA.com (logo) No. 2985493 Registered August 16, 2005
- AAdvantage (logo) No. 5288639 Registered December 19, 2017
All of these registrations predate the date of registration of the disputed domain name on November 13, 2020.
Copies of the USPTO registration certificates for all of the marks cited are exhibited at Annex 9. In addition to the cited US trade mark registrations the Complainant has also obtained registrations incorporating its AA marks in many other countries including India where the Respondent is purportedly located.
In particular it owns Indian trade mark registrations Nos.1870707, 1245965, 605111, 605112, 1789458, 1789454, and 1870709 for its mark AA. A chart of worldwide registrations for AA and AMERICAN AIRLINES is annexed to the Complaint as Annex 10.
In the absence of a Response the Panel finds the above evidence adduced by the Complainant to be true.
5. Parties’ Contentions A. ComplainantThe Complainant submits;
i. the disputed domain name is confusingly similar to the trade mark AA in which the Complainant has rights;
ii. on the evidence the Respondent has no rights or legitimate interests in respect of the disputed domain name;
iii. on the evidence the disputed domain name was registered and is being used by the Respondent in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarOn the basis of the evidence referred to in section 4 above the Panel has found that the Complainant has registered trade mark rights in the mark AA (which predate the date of registration of the disputed domain name).
The Complainant submits that the disputed domain name incorporates the Complainant’s mark AA in full. In addition it consists of the definite article “the” and the word “reservations”. The latter is evocative of the Complainant’s service of booking travel reservations.
The domain name also uses the gTLD “.com”. It is however well-established by numerous panel decisions that the addition of a gTLD does not prevent a finding of confusing similarity.
The Panel takes the view that the features between the domain name and the mark AA are insufficient to prevent it finding confusing similarity. In reaching this finding it accepts the Complainant’s above submission to the effect that the presence of the definite article “the” and the term “reservations” do not distinguish the domain name from the mark AA which is the distinctive and dominant part of the domain name.
The Panel therefore finds that the disputed domain name is confusingly similar to the mark AA in which the Complainant has rights within Paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsThe Complainant submits, on the evidence, that;
i. without its authorization or consent the Respondent registered the disputed domain name which is confusingly similar to the Complainant’s marks AA;
ii. the Respondent is not commonly known by the disputed domain name;
iii. the Respondent has not used or prepared to use the disputed domain name in connection with a bona fide offering of goods or services;
iv. the Respondent has not been authorized, licensed, or otherwise permitted by the Complainant to register and /or use the disputed domain name.
The Respondent refers to the fact that the WhoIs information identifies the registrant as “Ballu Balwant” of Lucknow, India and that there is no evidence that he is commonly known by the disputed domain name.
There is no evidence that the Respondent has operated any bona fide or legitimate business under the domain name. To the contrary, the evidence shows that the Respondent is using the domain name for a website that prominently displays unauthorized uses of the Complainant’s well-known marks AMERICAN and AMERICAN AIRLINES, as well as images of the Complainant’s aircraft which the Complainant asserts infringe its copyright.
This evidence is contained in Annex 11 to the Complaint which contains screen-shot images from what the Complainant terms an “Imposter Website” which was not authorized by it. The VOIP phone numbers displayed for “American Airlines Reservations” do not connect customers to the Complainant or any reservation service authorized or affiliated by it. Instead, it impersonates the Complainant so as to offer unauthorized or fraudulent American Airlines flight reservation services. These involve defrauding its consumers by adding unauthorized charges to credit cards, stealing their information, and/or offering competing and unauthorized American Airlines travel booking services. The Panel notes that the screen-shot is dated November 17, 2020 shortly after the registration of the domain name on November 13, 2020.
The Complainant expressly confirms that the Respondent is not in any way associated with, authorized by, or licensed by it to register or use a domain name incorporating its marks in connection with its own services.
It is well-established by numerous earlier panel decisions including those cited by the Complainant that the registration and use of a domain name to impersonate a complainant in furtherance of fraudulent purposes is sufficient to establish that a respondent has no legitimate interests in the domain.
The Complainant also refers to the fact that as of the date of filing the Complaint the disputed domain name also resolved to blank error web pages, copies of which are also included in Annex 11. It submits that such passive holding of the domain name further supports the submission that the Respondent is not making any bona fide or legitimate business use of the disputed domain name.
Having considered the Complainant’s submissions and supporting evidence and in the absence of a Response the Panel finds that the registration and use of the disputed domain name was for fraudulent purposes. There was no authorization or consent from the Complainant. It follows that the Respondent has no rights or legitimate interests in respect of the disputed domain name within Paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThe Complainant submits that the evidence of the fraudulent use of the disputed domain name as set out in section 6.B. above also demonstrates that the Respondent registered and is using the domain name in bad faith.
It submits that it is “obvious” that the Respondent had actual knowledge of the Complainant’s AA marks at the date of registration of the domain name. This is because the object of the registration was to fraudulently impersonate the Complainant. On the evidence contained in Annex 11 the Respondent’s use of the domain name misrepresents to users that the website is a genuine website of the Complainant. The content of the website consists of images of the Complainant’s airline activities.
The Complainant also relies upon the fact that the AA marks belong to the largest airline in the world and the Respondent having the intention of creating a website for fraudulent purposes would have been aware of the airline and its marks. The Respondent cannot demonstrate lack of knowledge of the Complainant and its marks since the Respondent specifically targeted the Complainant and its marks in his fraudulent scheme.
The Complainant submits that the Respondent’s use of the domain name was in bad faith. The evidence contained in Annex 11 shows that the Respondent used the domain name to impersonate the Complainant on the “Imposter Website”. It prominently displays the Complainant’s famous AA marks in offering to users unauthorized flight reservation services they will never receive, steals user’s personal information and/or improperly creates a likelihood of confusion regarding an affiliation with the Complainant. The fact that the whole modus operandi of the Respondent is fraudulent establishes that the domain name is being used in bad faith.
The use of a domain name for illegitimate including fraudulent activity can never confer rights or legitimate interests on a Respondent. This is set out in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) section 3.1.4.
The Complainant also relies upon the MX (mail exchange) records as shown in the MX records lookup exhibited at Annex 12 to the Complaint. This evidences additional bad-faith use of the domain name by engaging in fraudulent email or phishing communications.
On September 9, 2021 counsel for the Complainant sent a cease and desist letter to the Respondent at the email address provided in the WHOIS search. No response has yet been received from the Respondent. A copy of the correspondence is exhibited at Annex 13. It is well-established that a failure to respond to such a letter may be evidence of registration and use in bad faith.
Given the above evidence the Panel finds that the registration and use of the domain name was for fraudulent purposes. This supports a finding of registration and use in bad faith.
The Panel also takes into account a recent Panel decision in American Airlines, Inc. v Ballu Balwant et al,
WIPO Case No. D2021-0294 in which the parties were the same as in this case. It was found that the Respondent registered and used seven domain names incorporating the Complainant’s AMERICAN mark and that the Respondent was engaged in a bad faith pattern of abusive domain name registration. The Complainant invites a similar finding in this case. This constitutes evidence of a pattern of conduct of preventing a trade mark holder from reflecting its mark in the domain name within Paragraph 4(b)(ii) of the Policy.
This Panel finds on the evidence and in the absence of a Response that the disputed domain name was registered and is being used in bad faith pursuant to Paragraph 4(a)(iii) of the Policy.
7. DecisionFor 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,
Clive Duncan Thorne
Sole Panelist
Date: November 23, 2021