WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
American Airlines, Inc. v. Super Privacy Service LTD c/o Dynadot / Milen Radumilo
Case No. D2021-1242
1. The Parties
1.1 The Complainant is American Airlines, Inc., United States of America (“United States”), represented by Greenberg Traurig, LLP, United States.
1.2 The Respondent is Super Privacy Service LTD c/o Dynadot, United States / Milen Radumilo, Romania.
2. The Domain Name and Registrar
2.1 The disputed domain name <americanairliness.com> (the “Domain Name”) is registered with Dynadot, LLC (the “Registrar”).
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 22, 2021. On April 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 25, 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.
3.2 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”).
3.3 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 16, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 18, 2021.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on May 26, 2021. 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
4.1 The Complainant is a well-known airline based in the United States. The airline has a 90-year history and it has used the “American Airlines” name in respect of its activities since April 1934. 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.
4.2 The Complainant is the owner of various registered trade marks around the world that comprise or incorporate the term “American Airlines”. They include:
(i) United States registered trade mark No. 0514294 registered on August 23, 1949, for AMERICAN AIRLINES as letters in stylised form in class 39;
(ii) United States registered trade mark No. 1845693 registered on July 19, 1994, for AMERICANAIRLINES as letters in stylised form in class 25; and
(iii) European Union trade mark No. 000153726 registered on March 29, 1999, for AMERICAN AIRLINES as a word mark in classes 14, 16, 18, 25, 28, 34, and 39
4.3 The Complainant also uses the domain names <aa.com> and <americanairlines.com> to promote its activities. The <americanairlines.com> domain name redirects Internet users to a website operating from the <aa.com> domain name.
4.4 The Domain Name was registered on September 22, 2003. It was used in April 2021, to display what appeared to be pay-per-click links primarily directed to the Complainant’s business, using text such as “American Airline Tickets” and “AAdvantage Miles”. These diverted Internet users to competing airline reservation and travel services, as well as to websites unrelated to travel.
4.5 The web page at that time also contained a link with the text “Click here to buy this domain” and the Domain Name was made available for sale on Afternic website at a price of USD 688.
4.6 The Respondent would appear to be an individual located in Romania. There have been in excess of 80 decisions against him under the Policy. Examples include:
- Teva Pharmaceutical Industries Limited v. Milen Radumilo,
WIPO Case No. D2020-0658 (<tevaforhealth.com>);
- Groupon, Inc. v. Contact Privacy Inc. Customer 0155100866 / Milen Radumilo, WIPO Case No. D2019-3205 (<supportatgroupon.com>);
- American Honda Motor Co., Inc. v. Perfect Privacy, LLC / Milen Radumilo, WIPO Case No. D2019-2417 (<acurausa.com>);
- WhatsApp Inc. v. Milen Radumilo, WIPO Case No. D2019-1643 (<whatsappchatgroup.com>);
- LEGO Juris A/S v. Milen Radumilo, WIPO Case No. D2019-0544 (<lego‐racers.com>);
- Facebook Inc., Instagram, LLC, WhatsApp Inc., Facebook Technologies, LLC v. Perfect Privacy, LLC / Milen Radumilo, Hush Whois Protection Ltd., Contact Privacy Inc., Host Master, Transure Enterprise Ltd, WIPO Case No. D2019-0510 (multiple domain names including <ahatsapp.com>);
- International Business Machines v. Milen Radumilo, WIPO Case No. D2018-0328 (<01‑ibm.com>);
- Discover Financial Services v. Contact Privacy Inc. Customer 0142035953 / Milen Radumilo, WIPO Case No. D2017-1449 (<samsclubdiscovercard.net>);
- Compagnie Générale des Etablissements Michelin v. Milen Radumilo, WIPO Case No. D2016-2636 (<michelinroute.com>);
- BASF SE v. Perfect Privacy LLC / Milen Radumilo, WIPO Case No. D2016-1851 (<basf‑it‑services.net>);
- Swatch AG v. Perfect Privacy, LLC / Milen Radumilo, WIPO Case No. D2016-1370 (<wwwswatch.com>);
- Accenture Global Services Limited v. Milen Radumilo, WIPO Case No. D2016-1219 (<myidaccenture.com>).
4.7 This is not the first time that the Domain Name has been the subject of proceedings under the UDRP. The Domain Name was included in a previous complaint about five domain names. The panel was unpersuaded that all five domain names were under common control, and in the case of the Domain Name, those proceedings were terminated “without prejudice”. Full details in this respect are set out in American Airlines, Inc. v. Super Privacy Service Ltd, c/o Dynadot LLC / Domain Admin, Netlas, Cyan Yo, James Dupont, Zhichao, and Milen Radumilo, WIPO Case No. D2021-0442.
5. Parties’ Contentions
5.1 The Complainant refers to its business and marks and how the Domain Name has recently been used. It contends that the Domain Name comprises its AMERICAN AIRLINES registered trade mark combined with the letter “s” and the generic Top-Level Domain (“gTLD”) “.com”, and that consequentially the Domain Name is “nearly identical” to the Complainant’s registered mark.
5.2 The Complainant contends that the use made of the Domain Name, including its offer for sale, does not demonstrate rights or legitimate interests in the Domain Name and demonstrates registration and use in bad faith. In this respect it claims that in addition to the Respondent having prior actual knowledge of the Complainant’s marks, there was also constructive knowledge, relying upon United States case law and the decision in Kate Spade, LLC v. Darmstadter Designs, WIPO Case No. D2001-1384. In this respect it relies upon the examples of circumstances indicating bad faith registration and use at paragraphs 4(b)(i), 4(b)(iii) and 4(b)(iv) of the Policy.
5.3 The Complainant also alleges that the Respondent has used a privacy service in this case and this is also said to indicate bad faith. Finally, it contends that the Respondent’s past history of involvement in multiple UDRP cases provides additional evidence of bad faith and that his activities fall within the scope of paragraph 4(b)(ii) of the Policy.
5.4 The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.
6.2 Notwithstanding the default of the Respondent, it remains incumbent on the Complainant to make out its case in all respects set out in paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and
(iii) the Domain Name has been registered and is being used in bad faith (paragraph 4(a)(iii)).
6.3 However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate”.
6.4 Although the Domain Name has previously been the subject of UDRP proceedings, the circumstances of the termination of those proceedings so far as the Domain Name is concerned, mean that the Panel can and should substantively decide this case. In this respect see section 4.18 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), and in particular the comments therein about cases previously decided (including termination orders) expressly on a “without prejudice” basis.
A. Identical or Confusingly Similar
6.5 The Complainant has satisfied the Panel that it has registered trade marks that comprise or incorporate the words “American Airlines”. In order to satisfy the first element of the Policy it is usually sufficient for a complainant to show that the relevant mark is “recognizable within the disputed domain name” (as to which see section 1.7 of the WIPO Overview 3.0 ).
6.6 The Panel accepts that the only sensible reading of the Domain Name is as the words “American Airlines” to which has been added the letter “s” and the “.com” gTLD. Given this, the Complainant’s mark is clearly recognisable in the Domain Name. See also the comments in section 1.9 of the WIPO Overview 3.0 regarding obvious misspellings of a trade mark. The Complainant has, therefore, satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
6.7 As is discussed in the context of bad faith, the Panel accepts that the Domain Name was registered because it incorporated a misspelling (or if the Respondent was not the initial registrant of the Domain Name, was acquired by the Respondent because it incorporated a misspelling) of the Complainant’s mark, and that the Domain Name has subsequently been held with the intention of taking some form of unfair advantage of the Complainant’s mark. There are no rights or legitimate interests in holding a domain name for such a purpose.
6.8 Further, as the Domain Name involves a minor variation of both the Complainant’s trade mark and a domain name used by the Complainant in respect of its online activities, it effectively impersonates the Complainant, and it is difficult to conceive of any legitimate use other than by or with the authorisation of the Complainant (see sections 2.5.1 and 2.6.2 of the WIPO Overview 3.0 ). In the circumstances, the Panel concludes that the Respondent has no rights or legitimate interests in the Domain Name.
6.9 It follows that the Complainant has made out the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
6.10 Notwithstanding that “american” and “airlines” are both ordinary English words, and are also capable of being used in combination in a descriptive manner, the Panel has little hesitation in concluding that the Domain Name was initially registered (or if the Respondent was not the initial registrant, acquired) and has been held with the intention of taking some form of unfair advantage of the trade mark rights of the Complainant’s business.
6.11 The main reason for this is that the addition of the letter “s” to those words in the Domain Name cannot be sensibly read as anything other than a deliberately created typosquatting variation of the Complainant’s registered trade marks and a domain name owned and used by the Complainant (see section 3.2.1 of the WIPO Overview 3.0 ). This is particularly so given that the Panel accepts that at the time the Domain Name was registered (or acquired), the Complainant’s mark and domain name were very well known.
6.12 Further, the Panel also accepts that the way that the Domain Name was used in April 2021, with the use of pay-per-click links that clearly referred to the Complainant’s business, falls with the scope of the example of circumstances indicating bad faith registration and use set out in paragraph 4(b)(iv) of the Policy.
6.13 The Panel rejects the Complainant’s contentions based upon “constructive” knowledge of its trade marks. It is highly questionable whether this concept, which derives from United States law and was relied upon in some very early cases under the UDRP, is now of any utility in UDRP proceedings (see section 4.15 of the WIPO Overview 3.0 ). It also certainly does not apply where, as here, one of the Parties is not based in the United States (see section 3.2.2 of the WIPO Overview 3.0 ). However, this does not matter since that Panel has no difficulty in concluding that the Respondent has actual knowledge of the Complainant’s business and its marks at the relevant date of registration.
6.14 An unusual factor in this case is that the Domain Name was first registered nearly 18 years ago. It would perhaps have been helpful if this had been addressed head on in the Complaint. However, once again the Panel is of the view that ultimately it does not matter. There is no doctrine of laches under the Policy (see section 4.17 of the WIPO Overview 3.0 ). Further, the longevity of the Complainant’s business and some of its registered marks, and the inherent typosquatting nature of the Domain Name, mean that regardless of when the Domain Name was registered or acquired, the delay in bringing proceedings does not materially impact the assessment of bad faith.
6.15 Finally, the Panel also accepts that the previous activities of the Respondent provide an additional powerful indication of bad faith. The UDRP cases that the Complainant identifies show that the Respondent is a serial cybersquatter, who has cynically and systematically engaged in the business of registering domain names that incorporate the well-known trade marks of others for commercial advantage. The Panel is satisfied that this is yet another example of that modus operandi.
6.16 The Panel, therefore, concludes that the Domain Name was registered and is being used in bad faith. The Complainant has therefore made out the requirements of paragraph 4(a)(iii) of the Policy.
7.1 For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <americanairliness.com> be transferred to the Complainant.
Matthew S. Harris
Date: May 29, 2021