The Complainant is American Airlines, Inc., United States of America (“United States”), represented by Greenberg Traurig, LLP, United States.
The Respondent is Domain Admin, Whois Privacy Corp., Bahamas.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 7, 2021. On December 7, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 8, 2021, 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 December 13, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 2, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 5, 2021.
The Center appointed Karen Fong as the sole panelist in this matter on January 11, 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 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 registered the Domain Name on April 1, 2021. The Domain Name resolved to a pay-per-click webpage which has link headings such as: “Vacation House Rentals”, “Vacation Rentals” and “Vacation Rental”. These links then resolve to third party companies which provide competing services to those of the Complainant (the “Website”). The Website is not active at the time of the writing of this decision. The Domain Name is also being offered for sale by the Respondent for a minimum of USD 899 at a domain name marketplace located at “www.sedo.com”.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the Domain Name is confusingly similar to the Trade Marks, that the Respondent has no rights or legitimate interests with respect to the Domain Name, and that the Domain Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain Name.
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 Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is 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 Name; and
(iii) The Domain Name was registered and is being used in bad faith.
The 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 Name consists of the Complainant’s Trade Mark AA in its entirety combined with the prefix “www” and the word “vacations” after the Trade Mark AA. In this case, the Trade Mark AA is clearly recognizable in the Domain Name. The addition of the letters “www” and “vacations” does nothing to dispel confusion. 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 Name is 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.
C. 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 non commercial 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 Name. It has not authorised, licensed or otherwise permitted the Respondent to use the Trade Marks in the Domain Name 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 non commercial or fair use of the Domain Name.
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 Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
D. Registered and Used in Bad FaithTo succeed under the Policy, the Complainant must show that the Domain Name has 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 Mark when it registered the Domain Name given the fame of the Trade Marks and the fact that the Domain Name consists of the Trade Mark AA and the word “vacations” which is descriptive of the Complainant’s services and is 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 Name 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 Name in bad faith.
The Panel also finds that the actual use of the Domain Name is in bad faith. The Website was a pay-per-click site which had been set up for the commercial benefit of the Respondent. It is highly likely that web users when typing the Domain Name 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 Name is likely to confuse Internet users trying to find the Complainant’s official websites. Such confusion will inevitably result due to the “www” prefix, the incorporation of the Trade Mark AA in the Domain Name together with the word “vacations” which is descriptive of the Complainant’s services and the fact that the Domain Name is 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 Website 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 Website is that of or authorised or endorsed by the Complainant. The Panel therefore also concludes that the Domain Name was registered and is being used in bad faith under paragraph 4(b)(iv) of the Policy.
In addition, the Domain Name is being offered for sale by the Respondent on a domain name marketplace for a sum which well exceeds the costs directly related to the registration of the Domain Name. This is evidence that the Respondent has registered the Domain Name primarily for the purpose of selling as set out in paragraph 4(b)(i) of the Policy.
The Panel therefore concludes that the Domain Name was registered and is 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 Name
Karen Fong
Sole Panelist
Date: January 26, 2022