WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
JetBlue Airways Corporation v. Domain Admin, Whois Privacy Corp. / Maddisyn Fernandes, Fernandes Privacy Holdings
Case No. DCO2017-0041
1. The Parties
The Complainant is JetBlue Airways Corporation of New York City, New York, United States of America ("United States"), represented by Frankfurt Kurnit Klein & Selz, PC, United States.
The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, New Providence, Bahamas / Maddisyn Fernandes, Fernandes Privacy Holdings of La Paz, Bolivia (Plurinational State of).
2. The Domain Name and Registrar
The disputed domain name <jetblue.co> is registered with TLD Registrar Solutions Ltd. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 11, 2017. On October 11, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 19, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 20, 2017 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 on October 20, 2017.
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, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 15, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 16, 2017.
The Center appointed Debrett G. Lyons as the sole panelist in this matter on November 27, 2017. 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
The facts relevant to the decision in this case are that:
(1) the Complainant provides air transportation services by reference to the trade mark JETBLUE;
(2) the trade mark JETBLUE is the subject, inter alia, of United States Patent and Trademark Office ("USPTO") Reg. No. 2,449,988, filed July 9, 1999 and registered May 8, 2001, owned by the Complainant;
(3) the disputed domain name was registered on August 26, 2010;
(4) the disputed domain name has at one time resolved to the website of a car rental agency; and
(5) there is no commercial or other relationship between the Parties and the Complainant has not authorized the Respondent to use the trade mark or to register any domain name incorporating the trade mark.
5. Parties' Contentions
A. Complainant
The Complainant asserts trade mark rights in JETBLUE and submits that the disputed domain name is identical to its trade mark.
The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant alleges that the Respondent registered and is using the disputed domain name in bad faith.
The Complainant accordingly requests the Panel to order transfer of the disputed domain name.
B. Respondent
The Respondent did not submit a response.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
It is the responsibility of the Panel to consider whether the requirements of the Policy have been met, regardless of the fact that the Respondent failed to submit a response. Having considered the Complaint and the available evidence, the Panel finds the following:
A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – a threshold investigation into whether a complainant has rights in a trade mark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to the trade mark.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trade mark rights. It is accepted that a trade mark registered with a national authority is evidence of trade mark rights for the purposes of the Policy.1 The Complainant provides evidence of its registration of the trade mark JETBLUE with the USPTO and so the Panel accepts that the Complainant has trade mark rights.
The disputed domain name takes the trade mark to which it merely adds the country Top-Level Domain ("ccTLD") ".co" which can be disregarded for the purposes of comparison.2 The Panel finds that the disputed domain name is identical to the Complainant's trade mark and so finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has the burden to establish that the Respondent has no rights or legitimate interests in the disputed domain name. Nevertheless, it is well-settled that the Complainant need only make out a prima facie case, after which the onus shifts to the Respondent to rebut such prima facie case by providing evidence demonstrating rights or legitimate interests in the disputed domain name.3
Notwithstanding the lack of a response to the Complaint, paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
"(i) before any notice to you 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 (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 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 publicly available WhoIs data for the domain name registrant does not support any finding by the Panel that the Respondent might be commonly known by the disputed domain name.
There is no evidence that the Respondent has trade mark rights in the disputed domain name. There is no relationship between the Parties and the Complainant has not authorized the Respondent to use its trade mark.
The evidence accompanying the Complaint shows that at one point the disputed domain name resolved to the site of the car rental business, Hertz. The Complainant states that "[i]t is possible that there are many other pages to which the [disputed domain name] redirects on any given day." At the time of this decision the Panel found that the disputed domain name redirected Internet users to a site promoting a "free money system".
The use of the disputed domain name in these ways to misdirect Internet users to online locations with no connection with the Complainant's business under the trademark is not a bona fide offering of goods or services by reference to the disputed domain name, nor is it a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and that the Respondent in failing to reply to the Complainant's contentions has not rebutted such prima facie case.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and so the Complainant has satisfied the second element of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out circumstances which shall be evidence of the registration and use of a domain name in bad faith. They are:
"(i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location."
The Panel notes the Complainant's evidence of extensive use of the trade mark for some years prior to creation of the disputed domain name. In the circumstances, the Panel finds that Respondent had the Complainant's trademark in mind when it registered the disputed domain name, and that the Respondent's actions fall under paragraph 4(b)(iv) of the Policy. The Panel has already found the disputed domain name to be identical to the trade mark. The Panel further finds that the Respondent intends to gain commercially from the resultant confusion which brings traffic to the webpages to which the disputed domain name resolves. The Panel finds that, in terms of paragraph 4(b)(iv) of the Policy, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to various online locations unconnected with Complainant's business under the trade mark by creating a likelihood of confusion with the Complainant's trade mark.4
Accordingly, the Complainant has satisfied the third and final limb of the Policy.
7. Decision
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 <jetblue.co> be transferred to the Complainant.
Debrett G. Lyons
Sole Panelist
Date: December 5, 2017
1 See section 1.2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0").
2 See section 1.11.1 of the WIPO Overview 3.0.
3 See, for example, Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624.
4 See section 3.2.1 of the WIPO Overview 3.0.