Complainant is American Airlines, Inc., United States of America (“United States”), represented by Greenberg Traurig, LLP, United States.
Respondent is LEO Martin, United States.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 26, 2021. On November 26, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 29, 2021, 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 to Complainant on November 30, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on December 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 Respondent of the Complaint, and the proceedings commenced on December 2, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 22, 2021. On December 3, 2021, the Center received an informal communication to which the Center acknowledged receipt. Respondent did not submit any formal response. Accordingly, the Center notified the Commencement of Panel Appointment Process on December 23, 2021.
The Center appointed Robert A. Badgley as the sole panelist in this matter on January 4, 2022. 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 BackgroundComplainant is a major global airline that has operated for the better part of a century. Complainant asserts that it is “the largest air carrier in the world”. As of 2019, Complainant was flying to 350 destinations in more than 50 countries, making roughly 7,000 flights per day.
Complainant holds numerous registrations for the trademark AMERICAN AIRLINES, including an August 23, 1949 registration of that mark with the United States Patent and Trademark Office (“USPTO”), USPTO Reg. No. 0,514,294. There is little doubt that AMERICAN AIRLINES is a world famous trademark.
Complainant owns the domain name
The Domain Name was registered on October 14, 2021. The Domain Name resolves to a website which features Complainant’s AMERICAN AIRLINES and related trademarks and which purports to offer airline booking services. According to Complainant, Respondent has no authorization to use its marks in a domain name or otherwise, and Respondent is essentially seeking to impersonate Complainant in order to charge for services that will never be rendered, or to gather personal information about consumers, or to engage in some other form of illicit conduct.
5. Parties’ Contentions A. ComplainantComplainant contends that it has proven all three elements required under the Policy for a transfer of the Domain Name.
B. RespondentRespondent did not reply to Complainant’s contentions but merely informally replied stating a desire to “remove [the] domain from our account” and stating (incorrectly given the evidence of record) that “[w]e did not use it”.
6. Discussion and FindingsParagraph 4(a) of the Policy lists the three elements, which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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.
The Panel concludes that Complainant has rights in the famous trademark AMERICAN AIRLINES, through registration and use demonstrated in the record.
The Panel finds the Domain Name to be confusingly similar to the AMERICAN AIRLINES mark.
The mark is entirely reproduced in the Domain Name, and the additional word “support” does little or nothing to reduce the confusing similarity between the mark and the Domain Name. (A word like “support” is commonly used in domain names, or in a website’s internal pages, to describe the ancillary services that “support” the business’ main service.)
Complainant has established Policy paragraph 4(a)(i).
B. Rights or Legitimate InterestsPursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] 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 [Respondent] (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 [Respondent] 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.
The Panel concludes that Respondent lacks rights or legitimate interests in the Domain Name. Respondent has not come forward to articulate or prove some bona fide reason for registering the Domain Name.
It is undisputed that Respondent has no authority from Complainant to register the Domain Name.
It is also clear from the record presented here that Respondent is trying to impersonate Complainant for commercial gain by making liberal use of Complainant’s trademarks on his website and purporting to offer flight reservation services to Internet users. Such conduct is clearly illegitimate. Moreover, there is no evidence on record showing that Respondent has been commonly known by the Domain Name.
Complainant has established Policy paragraph 4(a)(ii).
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith. It is obvious that Respondent had Complainant’s famous AMERICAN AIRLINES trademark in mind when registering the Domain Name. If the fame of the mark were not enough to afford this conclusion, then Respondent’s actual use of his website to offer apparent flight booking services eliminates all doubt about Respondent’s targeting of Complainant’s mark.
As respects bad faith use, the undisputed record here indicates that Respondent is using the Domain Name for commercial gain by impersonating Complainant and offering services that one would expect Complainant to offer. The Panel also notes that Respondent’s website carries a small disclaimer at the footer. Prior UDRP panels have considered that in cases where the respondent appears to otherwise have a right or legitimate interest in a disputed domain name, a clear and sufficiently prominent disclaimer may lend support to circumstances suggesting its good faith. For example, where a respondent is legitimately providing goods or services related to the complainant’s mark only (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”), section 2.8), the presence of a clear and sufficiently prominent disclaimer can support a finding that the respondent has undertaken reasonable steps to avoid unfairly passing itself off as related to the complainant, or to otherwise confuse users.
On the other hand, where the overall circumstances of a case point to the respondent’s bad faith, the mere existence of a disclaimer cannot cure such bad faith. In such cases, panels may consider the respondent’s use of a disclaimer as an admission by the respondent that users may be confused. Here that is evident in the more prominent text in the core of the site that states “American Airlines Support online booking system provides all available flights that are operating according to your preferred time of travel to your preferred destinations around the world from the American Airlines Official Site”. This language is clearly intended to give the false impression that the Respondent’s site is somehow officially sanctioned by the Complainant when it is not.
This conduct constitutes bad faith within the meaning of the above-quoted Policy paragraph 4(b)(iv).
Complainant has established Policy paragraph 4(a)(iii).
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 Name
Robert A. Badgley
Sole Panelist
Date: January 13, 2022