WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Delta Air Lines, Inc. v. Web Marketing 360
Case No. DCO2012-0038
1. The Parties
Complainant is Delta Air Lines, Inc. of Atlanta, Georgia, United States of America, represented by Ladas & Parry, United States of America.
Respondent is Web Marketing 360 of Washington DC, United States of America.
2. The Domain Name and Registrar
The disputed domain name <delta.co> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 2, 2012. On November 5, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 5, 2012, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on November 7, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 27, 2012. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 28, 2012.
The Center appointed Gary J. Nelson as the sole panelist in this matter on December 5, 2012. 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 Background
Complainant is the owner of at least one United States Trademark Registration for DELTA. Specifically, Complainant owns at least the following trademark registration:
Date of Registration
November 19, 1957
The disputed domain name appears to have been registered on August 31, 2010. The operational website at <delta.co> resolves to an active website that offers commercial click-through opportunities to websites related to the airline industry, among others.
5. Parties’ Contentions
Complainant owns trademark rights in DELTA which it acquired prior to the registration of the disputed domain name <delta.co>.
The disputed domain name <delta.co> is confusingly similar to Complainant’s DELTA trademark.
Respondent has no rights or legitimate interests in the disputed domain name.
Respondent registered and is using the disputed domain name in bad faith.
Complainant is a worldwide leader in air transportation services for persons, property and mail. Complainant is one of the world's largest commercial airlines serving more than 160 million customers each year to more than 340 destinations in 61 countries on six continents. Complainant employs more than 80,000 employees worldwide and operates a mainline fleet of more than 700 aircraft.
Respondent is operating an active website at <delta.co> with click-through opportunities to commercial websites from which Respondent receives compensation each time an Internet User avails itself of the click-through option.
Respondent's decision to register <delta.co> is a form of typosquatting, designed to capture Internet users attempting to reach the website associated with “www.delta.com”, but who inadvertently leave off the letter "m" when typing in Complainant's <delta.com> domain name.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
In view of Respondent’s failure to submit a formal Response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and shall draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:
(i) The disputed 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 the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant has established that it owns prior rights in the DELTA mark and the disputed domain name is confusingly similar to Complainant’s DELTA mark.
Complainant owns at least one United States trademark registration for DELTA. The relevant priority date for this registration (i.e., November 19, 1957) precedes the date upon which the disputed domain name was registered (i.e., August 31, 2010).
Accordingly, Complainant has established rights in its DELTA mark pursuant to Policy, paragraph 4(a)(i). See Janus International Holding Co. v. Scott Rademacher, WIPO Case No. D2002-0201 (finding that the registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive. The respondent has the burden of refuting this assumption).
The disputed domain name, <delta.co>, is confusingly similar to Complainant’s DELTA trademark because the disputed domain name incorporates the entirety of Complainant’s DELTA trademark and merely adds the country code top-level “.co” domain suffix. The addition of a country code top-level domain suffix is not sufficient to create a distinct domain name capable of overcoming a proper claim of confusing similarity. See easyGroup IP Licensing Limited v. want tao, WIPO Case No. DCO2012-001 (holding that the ".co" country code is not to be taken into consideration when examining the identity or similarity between the complainant's trademark and the domain name). see also, Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil, WIPO Case No. D2000-1409 (finding that “[n]either the addition of an ordinary descriptive word […] nor the suffix “.com” detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy, paragraph 4(a)(i) is satisfied).
The Panel therefore finds that Complainant has proven the requirement of Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Panel finds the Complainant has made a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent has failed to file a formal Response, which may suggest, in appropriate circumstances, that Respondent lacks rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc., Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd., and Glenn Greenhouse., WIPO Case No. D2000-1221 (finding that the respondent’s failure to respond in a UDRP proceeding can be construed, in appropriate circumstances, as an admission that it has no rights or legitimate interests in a domain name).
By not filing a formal Response, Respondent has not provided any evidence that it is commonly known by the disputed domain name, or that it is commonly known by any name consisting of, or incorporating the word "delta". In Charles Jourdan Holding AG v. AAIM, WIPO Case No. D2000-0403, the panel held that a lack of rights or legitimate interests could be found where (1) the respondent is not a licensee of the complainant; (2) the complainant’s rights in its related trademarks precede the respondent’s registration of the domain name; and (3) the respondent is not commonly known by the domain name in question. The Panel notes that by not submitting a formal Response, Respondent also failed to provide any evidence that it is a licensee of Complainant or that its registration of the disputed domain name predates the establishment of Complainant’s rights in its DELTA mark.
Complainant has provided unrebutted evidence showing that Respondent is operating a website at “www.delta.co” featuring click-through opportunities to websites operated by Complainant's competitors. Accordingly, the Panel concludes Respondent is using the disputed domain name in association with a website that competes directly with Complainant’s business interests. Furthermore, it is likely Respondent receives click-through fees each time an Internet user accesses the website at <delta.co> and clicks on any of the numerous options available. The use of another’s well-known trademark for the purpose of deriving this type of commercial benefit is evidence that Respondent has no right or legitimate interests in the disputed domain name.
Complainant alleges that Respondent, by registering the disputed domain name <delta.co>, has engaged in typosquatting, the deliberate misspelling of a domain name based on a well-known trademark. Specifically, Complainant alleges that Respondent's registration of <delta.co> is a deliberate attempt to attract Internet users attempting to reach the website associated with “www.delta.com”. The Panel concurs with this assertion and concludes that Respondent has indeed engaged in typosquatting with the intent of catching Internet users that might accidently leave off the "m" when typing “www.delta.com”. This action is evidence that Respondent has no right or legitimate interest in the disputed domain name. See easyGroup IP Licensing Limited v. want tao, WIPO Case No. DCO2012-0001 (holding that the registration of a domain name consisting of another's well-known trademark with the "co" country code can be typosquatting which is a form of cybersquatting based on the probability that a certain number of Internet users will mistype the domain name of a website when surfing the Internet, and holding that this type of activity is neither a bona fide offering of goods and services nor a legitimate noncommercial or fair use).
The Panel therefore finds that Complainant has proven the requirement of Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Panel finds that Respondent registered and is using the disputed domain name in bad faith.
Respondent’s use of a website associated with the disputed domain name <delta.co> that provides click-through opportunities are actions taken by Respondent to intentionally attract, for commercial gain, Internet users by creating a likelihood of confusion with Complainant’s DELTA mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. This established activity is a direct violation of paragraph 4(b)(iv) of the Policy, and is of bad faith registration and use. See also MpireCorporation v. Michael Frey, WIPO Case No. D2009-0258 ("while the intention to earn click-through revenue is not in itself illegitimate, use of a domain name that is deceptively similar to a trademark to obtain click-through revenue is found to be bad faith use"); Paris Hilton v. Deepak Kumar, WIPO Case No. D2010-1364 (finding that using the domain name as a parking page with pay-per-click links to third party websites may be evidence of bad faith when the registrant is using the domain name in this manner because of the similarity to the complainant's trademark in the hope and expectation that the similarity will lead to confusion on the part of Internet users and result in an increased number of Internet users being drawn to that domain name parking page).
Respondent's activity to engage in typosquatting by registering <delta.co> in hopes of catching inattentive Internet users attempting to reach the website at “www.delta.com” is evidence in this Panel’s view that Respondent registered and is using the disputed domain name in bad faith. See Nat'l Ass'n of Prof'l Baseball Leagues v. Zuccarini, WIPO Case No. D2002-1011 (concluding that typosquatting is inherently parasitic and evidence of bad faith registration and use of a domain name); see also Zone Labs, Inc. v. Zuccarini, NAF Claim No. FA190613 (finding respondent registered and used the <zonelarm.com> domain name in bad faith when the domain name was merely a typosquatted version of complainant's ZONEALARM trademark).
The Panel therefore finds that Complainant has proven the requirement of Policy, paragraph 4(a)(iii).
For 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 <delta.co> be transferred to Complainant.
Gary J. Nelson
Dated: December 18, 2012