WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
JetBlue Airways Corporation v. Domain Hostmaster, Customer ID 19460161924865, Whois Privacy Services Pty Ltd / DN Manager, Whois-Privacy.Net Ltd
Case No. D2017-1979
1. The Parties
The Complainant is JetBlue Airways Corporation of Long Island City, New York, United States of America ("United States"), represented by Frankfurt Kurnit Klein & Selz, PC, United States.
The Respondent is Domain Hostmaster, Customer ID 19460161924865, Whois Privacy Services Pty Ltd of Fortitude Valley, Queensland, Australia / DN Manager, Whois-Privacy.Net Ltd of Port Vila, Vanuatu.
2. The Domain Name and Registrar
The disputed domain name <jetbue.com> is registered with Fabulous.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 10, 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 the same day, 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 16, 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 17, 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 Jane Lambert as the sole panelist in this matter on December 8, 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 Complainant is a large American airline that serves over 70 destinations in the United States, the Caribbean and Latin America. Its revenues in 2015 were USD 6.4 billion (up from USD 5.8 billion in 2014). Its corporate name includes the term JETBLUE and that sign appears prominently on all its aircraft as well in the terminals of all the airports it serves. The sign also features prominently in its press, billboard, radio and TV and other advertising. It spent USD 264 million on sales and marketing in 2015 compared to USD 231 million in 2014. As a result of its business activities and advertising the public associate the term JETBLUE with the Complainant and none other.
The Complainant has registered or applied to register 40 trade or service marks that include the term JETBLUE either simpliciter or in combination with other words in relation to various goods and services. For example, it registered the term JETBLUE with the United States Patent and Trademark Office as a service mark for various services in class 39 under registration number 2,449,988 on May 8, 2001.
The Panel noted that a potentially complicating feature of this case is that the disputed domain name was registered on May 15, 2002 which is 15 years ago. In the absence of any evidence from the parties as to whether the disputed domain name had been used during that time and, if so, how, the Panel consulted the Wayback Machine at "web.archive.org". The Panel found that the disputed domain name was used more or less continuously from about June 1, 2002 right up to the present. According to the wayback machine, there had been a website at "www.jetbue.com" from January 2003 which appeared to offer travel advice of all kinds. For instance, there were links to flights on boats and trains as well as flights and nowhere was there any express reference to the Complainant.
Latterly the site had been used for sponsored links and searches. The Panel visited the site on December 13, 2017 and found links to "JetBLUE Airways", "One Way Tickets", "Round Trip Tickets", "JetBlue Cheap Flights", "JetBLUE Airfares", "Flight Searches" and "International Airfares". The Panel clicked the "JetBLUE Airways" link and found that it led to a choice of chat lines and one casino site.
Very little is known of the Respondent other than that it appears to be in Vanuatu. It is not clear from the case file whether the Respondent has always held the disputed domain name or whether it acquired it from the person who first registered it or from a successor in title.
As the disputed domain name was first registered over 15 years ago, the Panel consulted the records of the United States Securities and Exchange Commission to find out when the Complainant was incorporated and when it started flying. According to the latest annual report that the Complainant has filed with the Commission, the Complainant was incorporated in Denver in August 1998 and began operations on February 11, 2000.
5. Parties' Contentions
The Complainant requested the transfer of the disputed domain name on the grounds that:
- The disputed domain name was confusingly similar to a trade or service mark in which the Complainant had rights;
- The Respondent has no rights or legitimate interests in the disputed domain name; and
- The disputed domain name had been registered and is being used in bad faith.
The Complainant alleged that:
"JetBlue is in the business of providing air travel services. In particular, and since at least as early as 1999, JetBlue has been continuously using its well-known JETBLUE trademark in a highly prominent manner in connection with superior service in every aspect of air travel including providing high quality, high value air transportation. As a result of JetBlue's extraordinary efforts, JetBlue has become one of the premier and most highly recognized and respected domestic airlines in the United States.
It continued with a list of its trade and service marks a few of which preceded the registration of the disputed domain name. It mentioned its domain name <jetblue.com> which it registered on June 30, 1999 and listed some of its awards. After disclosing its sales and spending in advertising it concluded that:
"As a result of JetBlue's substantial investments in advertising, marketing, and promotion, its widespread and continuous use of the JETBLUE Marks since 1999, and the extensive publicity and news coverage surrounding JetBlue, JetBlue has developed substantial rights and goodwill in the JETBLUE Marks, and the public has come to associate the JETBLUE Marks exclusively with JetBlue as the source of JetBlue's well-regarded air travel services."
It points out that the disputed domain name differs from the Complainant's word mark JETBLUE only by the omission of the letter "l" and concludes that "the Infringing Domain is identical or at least confusingly similar to the JETBLUE Marks."
As for the second ground, the Complainant refers to its trademark registrations in the United States that predate the registration of the disputed domain name on May 15, 2002. It states that the Respondent is not connected with the Complainant in any way and alleges that that the "Respondent's continued use of the JETBLUE Marks will cause JetBlue to suffer irreparable damage through loss of its goodwill in the trademarks". The Complainant argues that the "Respondent lures consumers to the Infringing Domain by using a confusingly similar web address to that of JetBlue. Unwitting consumers who accidentally misspell the legitimate jetblue.com URL by omitting the letter 'l' will arrive at Respondent's website. Once consumers arrive at the website, the Infringing Domain automatically redirects to one of many other websites where a different product or service is offered or promoted."
The Complainant adds that "there is no information to suggest that Respondent has become commonly known as JETBUE. The Infringing Domain does not resolve to any website that displays or refers to JETBUE."
Much of the Complainant's argument on the third ground repeated its arguments on the first and second. It repeated the point that it registered its first trademark nearly three years before the disputed domain name was registered. It repeated its complaint about typosquatting and alleges that the Respondents are taking advantage of the Complainant's goodwill.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The agreement for the registration of the disputed domain name incorporates the Policy by reference. Paragraph 4(a) of the Policy provides as follows:
"Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a 'complainant') asserts to the applicable Provider, in compliance with the Rules of Procedure, that '
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.
In the administrative proceeding, the complainant must prove that each of these three elements are present."
A. Identical or Confusingly Similar
The Panel finds the first element to be present.
The Complainant is the registered proprietor of the service mark mentioned in paragraph 4 above. That is clearly a service mark in which the Complainant has rights. The only difference between the word mark that is protected by that registration and the disputed domain name is the omission in the latter of the letter "l". That "l" could easily be missed with the result that Internet users will be led to the web page described in paragraph 4 hereof.
B. Rights or Legitimate Interests
The Panel finds the second element to be present.
This issue has troubled the Panel because there has been some use of the disputed domain name contrary to the Complainant's contentions. However, it is impossible to tell from the fragments on the Wayback Machine whether such use was in connection with a bona fide offering of goods or services.
Also troubling is the possibility that the letters "BUE" were a name, abbreviation or acronym that meant something in 2002.
However, this case has to be decided on the balance of probabilities. What is known for certain is that the Respondent is not connected to the Complainant or licensed by it to use its trademarks. It is also clear that it is not using the <jetbue.com> domain name for a bona fide offering of goods and services now.
That is enough to raise a presumption that it has no rights or legitimate interests in the disputed domain name. The Respondent had an opportunity to rebut that presumption by making representations to the contrary in these proceedings but it failed to take it. As the presumption has not been rebutted the Complainant succeeds on this point.
C. Registered and Used in Bad Faith
The Panel finds the third element to be present.
It is a close question to this Panel whether the disputed domain name was registered in bad faith in 2002 but it is certainly being used in bad faith now. The landing page described in paragraph 4 above falls full square within paragraph 4(b)(iv) of the Policy. It may be going too far to say that the Respondent "lure" users to its website as the Complainant alleges but it has taken advantage of the similarity between its domain name and the Complainant's mark to attract for commercial gain (that is to say, pay-per-click revenue) Internet users to its website.
Had the Respondent bothered to oppose the Complaint, it might have conceded that it had used the disputed domain name in bad faith but argued that there is no evidence of bad faith in 2002. On balance however, in light of the record in front of it, the Panel finds that the third element is established for purpose of the Policy.
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 <jetbue.com> be transferred to the Complainant.
Date: December 15, 2017