The Complainant is American Airlines, Inc., United States of America (“United States”), represented by Greenberg Traurig, LLP, United States.
The Respondent is 杨智超 (Zhichao Yang), China.
2. The Domain Names and RegistrarThe disputed domain names
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 27, 2021. On September 27, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On September 28, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 20, 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 in English on October 22, 2021.
On October 20, 2021, the Center transmitted another email communication to the Parties in English and Chinese regarding the language of the proceeding. On October 22, 2021, the Complainant submitted its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 15, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 25, 2021.
The Center appointed Karen Fong as the sole panelist in this matter on December 14, 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 a leading international and national airline carrier based in the United States. Prior to the Covid-19 pandemic, the Complainant and its affiliates served over 350 destinations in over 50 countries with nearly 7,000 daily flights.
The Complainant provides its services under the brands AMERICAN, AMERICAN AIRLINES, AA and AA.COM. These trade marks are registered in many territories around the world including the United States and China. The earliest AA trade mark registration submitted under United States Trade Mark Registration No. 514292 dates back to August 23, 1949 whilst the earliest AA.COM trade mark registration under United States Trade Mark Registration No. 2339639 dates back to April 11, 2000 (individually and collectively the “Trade Marks”). The Complainant’s various websites for its travel, transportation, vacation booking, travel agency, travel reservation, travel rewards and loyalty programs, travel merchandise and related goods and services include “www.aa.com” and “www.aavacations.com”.
The Respondent who is based in China registered the Domain Names on May 5, 2021. The Domain Names resolve to pay-per-click webpages which have link headings such as: “Vacation House Rentals”, “Vacation Rentals”, “All Inclusive Deals”, “Meetings”, and “Cheap Travel Packages”. These links then resolve to third party companies which provide competing services to those of the Complainant (the “Websites”).
5. Parties’ Contentions A. ComplainantThe Complainant contends that the Domain Names are confusingly similar to the Trade Marks, that the Respondent has no rights or legitimate interests with respect to the Domain Names, and that the Domain Names were registered and are being used in bad faith. The Complainant requests transfer of the Domain Names.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. GeneralAccording to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names, the Complainant must prove each of the following, namely that:
(i) The Domain Names are identical or confusingly similar to trade marks or service marks in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) The Domain Names were registered and are being used in bad faith.
The Rules, paragraph 11(a), provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the proceeding shall be the language of the registration agreement, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the administrative proceeding. According to the information received from the Registrar, the language of the Registration Agreements for the Domain Names is Chinese.
The Complainant submits that the language of the proceeding should be English for the following reasons:
- The Domain Names contain English words in Latin script;
- The Domain Names contains the Complainant’s well-known AA trade mark and obvious typos of the English word “vacations”, which is strongly associated with the Complainant’s business which is based in the United States;
- The Websites are in English as are the pay-per-click links that they resolve to which indicate the Respondent’s familiarity with the English language;
- The Complainant is not familiar with the Chinese language and allowing the dispute to proceed in Chinese would give the Respondent an advantage as the Complainant would be put to great expense and inconvenience to have to translate the Complaint and its evidence which would cause undue delay.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
The Panel notes the Complainant’s submissions regarding the language of the proceeding, the composition of the Domain Names, and other circumstances of this case. Although the Respondent has been notified in English and Chinese of the language of the proceeding and the Complaint, the Respondent has not challenged the Complainant’s language request and in fact has failed to file a Response. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner. In this case, the Complainant may be unduly disadvantaged by having to conduct the proceeding in Chinese. In all the circumstances, the Panel determines that English be the language of the proceeding.
C. Identical or Confusingly SimilarThe Panel is satisfied that the Complainant has established that it has registered rights to the Trade Marks.
The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the trade mark and the domain name to determine whether the domain name is confusingly similar to the trade mark. The test involves a side-by-side comparison of the domain name and the textual components of the relevant trade mark to assess whether the mark is recognizable within the domain name.
In this case, the Domain Names consist of the Complainant’s Trade Mark AA in its entirety combined with a misspelling of the word “vacations” with one having the letter “c” as the last letter instead of “s” and the other with an additional “t” after the letter “c”. In this case, the Trade Mark AA is clearly recognizable in both Domain Names. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) which in this case is “.com”. It is viewed as a standard registration requirement (section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
The Panel finds that the Domain Names are confusingly similar to the Trade Mark AA in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.
D. Rights or Legitimate InterestsPursuant to paragraph 4(c) of the Policy, a respondent may establish rights or legitimate interests in the disputed 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) the respondent has been commonly known by the domain name, even if it has acquired no trade mark 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 trade mark or service mark at issue.
Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in section 2.1 of the WIPO Overview 3.0 that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such a prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with some allegations of evidence of relevant rights or legitimate interests, the panel weighs all the evidence, with the burden of proof always remaining on the complainant.
The Complainant contends that the Respondent is not commonly known by the Domain Names. It has not authorised, licensed or otherwise permitted the Respondent to use the Trade Marks in the Domain Names or for any other purpose. Further, the display of pay-per-click links in this manner does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use of the Domain Names.
The Panel finds that the Complainant has made out a prima facie case, a case calling for a reply from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Names.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names.
E. Registered and Used in Bad FaithTo succeed under the Policy, the Complainant must show that the Domain Names have been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondent must have been aware of the Trade Marks when it registered the Domain Names given the fame of the Trade Marks and the fact that the Domain Names consist of the Trade Mark AA and misspelling of the word “vacations” which is descriptive of the Complainant’s services and are also almost identical to the Complainant’s website “www.aavacations.com”.
In the WIPO Overview 3.0, section 3.2.2 states as follows:
“Noting the near instantaneous and global reach of the Internet and search engines, and particularly in circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers), panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark.”
The fact that there is a clear absence of rights or legitimate interests nor any explanation for the Respondent’s choice of the Domain Names are also significant factors to consider (as stated in section 3.2.1 of the WIPO Overview 3.0). In light of the above, the Panel finds that the Respondent deliberately registered the Domain Names in bad faith.
The Panel also finds that the actual use of the Domain Names is in bad faith. The Websites are pay-per-click sites which have been set up for the commercial benefit of the Respondent. It is highly likely that web users when typing the Domain Names into their browser, or finding them through a search engine would have been looking for a site operated by the Complainant rather than the Respondent. The Domain Names are likely to confuse Internet users trying to find the Complainant’s official websites. Such confusion will inevitably result due to the incorporation of the Trade Mark AA in the Domain Names together with a misspelling of the word “vacations” which is descriptive of the Complainant’s services and the fact that the Domain Names are also almost identical to the Complainant’s website “www.aavacations.com”.
The Respondent employs the fame of the Trade Marks to mislead users into visiting the Websites instead of the Complainant’s. From the above, the Panel concludes that the Respondent intentionally attempted to attract for commercial gain, by misleading Internet users into believing that the Respondent’s Websites and the products sold on them are those of or authorised or endorsed by the Complainant. The Panel therefore also concludes that the Domain Names were registered and are being used in bad faith under paragraph 4(b)(iv) of the Policy.
The Panel therefore concludes that the Domain Names were registered and are being used in bad faith.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names,
Karen Fong
Sole Panelist
Date: January 10, 2022