The Complainant is Delta Air Lines, Inc. of Atlanta, Georgia, United States of America represented by Ladas & Parry of Chicago, Illinois, United States of America.
The Respondent is Jannie Blazek of Czech Republic.
The disputed domain name <delta-tickets.com> is registered with Todaynic.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 4, 2009. On September 4, 2009, the Center transmitted by email to Todaynic.com, Inc. a request for registrar verification in connection with the disputed domain name. On September 18, 2009, Todaynic.com, Inc. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 18, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was October 8, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 9, 2009.
The Center appointed The Honourable Neil Anthony Brow QC as the sole panelist in this matter on October 14, 2009. 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.
The Complainant is the famous international airline that was founded in the United States of America in 1929. It is one of the world's largest commercial airlines and provides ticketing and other facilities for its extensive range of transport services.
The Complainant is the registered owner of many trademarks for DELTA including the following:
(a) Trademark registered number 0654915 for DELTA, registered with the United States Patent and Trademark Office on November 19, 1957;
(b) Community Trademark registered number 000132290 for DELTA registered with the Office For Harmonization in the Internal Market on June 18, 1998;
(c) Trademark registered number 175722 for DELTA registered with the trademark authority of the Czech Republic on March 6, 1992;
(collectively referred to as “the DELTA trademarks”).
Additionally, the Complainant is the registrant of the domain name <delta.com> that it uses to provide services on the Internet for its customers.
The Respondent registered the domain name <delta-tickets.com> on July 23, 2009. It presently resolves to a website parking page featuring generic links to third party websites promoting the sale of airline tickets and other services. Formerly, the website claimed to be an affiliate of the Complainant and purported to sell tickets for the Complainant's scheduled flights.
The Complainant alleges that the domain name <delta-tickets.com> should no longer be registered with the Respondent, but that it should be transferred to the Complainant.
It contends that this should be done because, within the meaning of paragraph 4 of the Policy, the domain name is confusingly similar to the Complainant's registered trademarks, that the Respondent has no rights or legitimate interests in the domain name and that the domain name has been registered and subsequently used in bad faith. The Complainant maintains that it can prove all three of these requirements and that the appropriate remedy is to transfer the domain name to the Complainant.
In support of its case on the first of these three elements, the Complainant relies on the registered DELTA trademarks to which reference has already been made. It then says that the domain name <delta-tickets.com> is confusingly similar to the DELTA trademarks as the spelling of that word in the domain name is the same as the spelling of the same word in the trademarks with the addition of a hyphen and the word “tickets”, which is an essential part of the Complainant's business, thus suggesting that the domain name relates to the sale of tickets on the Complainant's flights.
The Complainant then contends, to establish the second element, that the Respondent has no rights or interests in the domain name because the facts show an obvious intention by the Respondent to benefit from the reputation of the well-known DELTA mark and to use it in fraudulent way, namely by claiming to be an affiliate of the Complainant authorized to sell tickets on the Complainant's flights and by holding itself out as being authorized to take the credit card details and other personal information of potential customers. Moreover, the Complainant contends that it has never authorized the Respondent to perform any of those roles or to use its trademark in a domain name or anywhere else.
Finally, the Complainant contends that the domain name was registered and is being used in bad faith. It contends that this so because the Respondent registered the disputed domain name incorporating the DELTA trademark without any permission from the Complainant, falsely claimed to be authorized to sell tickets on the Complainant's flights and to solicit passwords and credit card details from potential passengers and attempted to perpetrate a fraud on the public by engaging in phishing, pharming and other fraudulent activities to the prejudice of the Internet public and the Complainant. The Complainant contends that these activities of the Respondent constitute bad faith registration and use within the meaning of paragraph 4(b) (iv) of the Policy and within the general meaning of bad faith.
The Respondent did not reply to the Complainant's contentions.
Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In that regard, the Panel also notes that the fact that a respondent has not made a formal submission does not avoid the necessity of examining the issues and of doing so in the light of the evidence. The onus remains on the complainant to make out its case and past WIPO UDRP panels have said many times that despite the absence of a submission from a respondent, a complainant must nevertheless show that all three elements of the Policy have been made out before any order can be made to transfer a domain name.
However, as the Panel will illustrate later, it is possible to draw inferences from the evidence that has been submitted and in some cases from silence. Indeed, paragraph 14 of the Rules incorporates both of those notions into the procedures of the Panel.
The Panel therefore turns to discuss the various issues that arise for decision on the facts as they are known.
For the Complainant to succeed it must prove, within the meaning of paragraph 4(a) of the Policy, that:
(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.
It is to be noted that paragraph 4 of the Policy provides that the Complainant must prove that each of the three elements is present. The Panel will therefore deal with each of these requirements in turn.
The Panel accepts the evidence submitted by the Complainant that it owns the registered DELTA trademarks to which reference has been made, that they are all current and that it therefore has rights in those marks. In particular, the Panel notes that one of the DELTA trademarks is registered in the Czech Republic which was specified as the country of the Respondent's domicile when the domain name was registered.
The Panel also finds that the disputed domain name is confusingly similar to the DELTA trademarks. The spelling of the substantial part of the domain name is the same as that of the mark; all that has been done to create the domain name is to add to the DELTA mark a hyphen and the word “tickets”, the provision of which is a necessary part of running an airline, thus suggesting to the objective bystander that the domain name relates to the Complainant and to tickets for flights on its aircraft. Numerous UDRP decisions have held that adding generic words to a trademark is insufficient to give any distinctiveness to the domain name in dispute; see Alstom v. FM Laughna, WIPO Case No. D2007-1736 and Groupe Auchan v. Jakub Kamma, WIPO Case No. D2007-0565. Accordingly, the objective bystander, faced with the domain name and the DELTA trademark, would assume that the domain name was referring to the well known international airline Delta, the purchase of tickets for flights on its aircraft and related activities such as providing credit card facilities for obtaining those tickets.
It has also long been held that minor features such as a hyphen and suffixes such as the gTLD suffix “.com” cannot negate confusing similarity where it otherwise exists, as it does in the present case.
For these reasons, the Panel finds that the domain name is confusingly similar to the trademarks and that the Complainant has made out the first of the three elements that it must establish.
Under paragraph 4(a) (ii), the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the domain name. But by virtue of paragraph 4(c) of the Policy, it is open to a respondent to establish its rights or legitimate interests in a 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.
Thus, if the respondent proves any of these elements or indeed anything else that shows it has a right or interest in the domain name, the complainant will have failed to discharge its onus and the complaint will fail.
The Panel's task in deciding if a respondent has any rights or legitimate interests in a domain name is made more difficult when the respondent is in default and does not file a response or any other form of submission. The Respondent in the present case was given notice that it had until October 8, 2009 to send in its Response, that it would be in default if it did not do so and that, by virtue of paragraph 14 of the Rules, the Panel might draw appropriate inferences from that default.
It is also well established that, as it is put in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions:
“…a complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a) (ii) of the UDRP.”
The Panel, after considering all of the evidence in the Complaint and the exhibits attached to it, finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the domain name.
The prima facie case is based on the facts that:
(i) the DELTA trademark is very well known internationally;
(ii) it indicates the name of a well-know international airline that also operates in Europe where the Respondent is apparently domiciled;
(iii) the Respondent chose this prominent name for its domain name and added only a hyphen and the word “tickets” which describes an essential feature of all airlines, thus raising the inference in the minds of the internet public that the domain name would lead to a facility where the user could buy tickets for flights on the Complainant's aircraft and use other facilities such as credit card facilities to buy those tickets;
(iv) the Respondent was not authorized by the Complainant to use the DELTA name or mark in a domain name or anywhere else; and
(v) the Respondent has clearly been using or attempting to use the domain name for an illegitimate purpose, namely posing as an authorized affiliate of the Complainant and soliciting credit card details and passwords from potential passengers on the Complainant's flights.
The Respondent has not made any attempt to rebut this prima facie case and the Panel therefore concludes that the Respondent has no rights or legitimate interests in the domain name.
The Panel finds that the Complainant has therefore made out the second of the three elements that it must establish.
The Complainant must prove on the balance of probabilities both that the domain name was registered in bad faith and that it is being used in bad faith: Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
Further guidance on how to implement this requirement is to be found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which shall be evidence of the registration and use of a domain name in bad faith, although other circumstances may also be relied on, as the four circumstances are not exclusive.
The four specified circumstances are:
(i) circumstances indicating that the respondent has registered or 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 the respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) the 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 the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to respondent's website 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 the respondent's website or location or of a product or service on the site or location.
The Complainant relies on paragraphs 4(b) (iv) and also on the general notion of bad faith, which it is clearly entitled to do, for there have been many UDRP decisions that have held that bad faith is not limited to the factors set out in paragraph 4(b) of the Policy.
The Panel finds that the evidence submitted by the Complainant makes out a strong case that the Respondent both registered and is using the domain name in bad faith. That is so for the following reasons.
First, the evidence shows that the Respondent has registered as a domain name the Complainant's very well known DELTA trademark. To this trademark the Respondent has added only a hyphen and the word “tickets”, which is an essential feature of running an airline, thus suggesting that the domain name relates to the availability of tickets for flights on the Complainant's aircraft and supporting facilities associated with buying those tickets. This raises the assumption that the domain name was registered for the illegitimate purpose of trading off the name and reputation of the Complainant for commercial purposes and thus in bad faith, for the Respondent clearly had the Complainant in mind when he registered the domain name without permission. As the Complainant has shown by reference to decisions such as Charles Jourdan Holding AG v. AAIM, WIPO Case No. D2000-0403, the very use of such a famous trademark as DELTA without any permission shows bad faith by itself. In the absence of any explanation from the Respondent for doing so and in the light of the inherently illegitimate nature of the Respondent's activities, the Panel finds that the Respondent registered the domain name in bad faith.
Secondly, the evidence adduced by the Complainant shows that, having registered the domain name, the Respondent attempted to use it for a fraudulent purpose. The Respondent falsely held out the website to which the domain name resolved as being the site of an affiliate of the Complainant where tickets for flights on its aircraft could be bought. Indeed, the website carried the assertion that it was a “Direct Delta Airlines ticket seller” and numerous other statements to the effect that reservations for Delta flights could be made via the website. It is also apparent from the layout of the website that the Respondent was using it or attempting to use it to solicit passwords, credit card details and other personal information from potential passengers which was an attempted fraud on visitors to the Internet and potential passengers of the Complainant. In all probability, the Respondent was using the website for the illegal Internet practices known as phishing and pharming.
Even subsequently to the Complainant having prevailed on the Internet service provider hosting the domain name to remove the offending material from the Respondent's website, the domain name now resolves to a parking page that features generic links to a parking page with links to third party sites that promote airline tickets for airlines other than the Complainant and other services. Thus, even now, the domain name is being used for an improper purpose and to trade on the Complainant's brand and do damage to it.
In particular, the evidence adduced by the Complainant brings the case squarely within the provisions of paragraph 4 (b) (iv) of the Policy. That is so because the evidence demonstrates that the Respondent has used and currently uses the domain name to attract, for commercial gain, Internet users to the parking page by creating confusion with the Complainant's trademark as to the affiliation of the services promoted on the site within the meaning of paragraph 4(b) (iv) of the Policy.
Accordingly, for those reasons the Panel concludes that the case presented by the Complainant shows that the Respondent registered and used the domain name in bad faith within the meaning of paragraph 4 (b)(iv) and within the general concept of bad faith. The Complainant has accordingly made out the third of the three elements that it must establish.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <delta-tickets.com> be transferred to the Complainant.
The Honourable Neil Anthony Brown QC
Dated: October 26, 2009