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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Delta Air Lines, Inc. v. Stonybrook Investments, Ltd

Case No. D2000-1686

 

1. The Parties

The Complainant: Delta Air Lines, Inc., Hartsfield Atlanta International Airport, 1030 Delta Boulevard, Atlanta, Georgia, United States of America.

The Respondent: Stonybrook Investments, Ltd, 18 Mopan St, Belize City, N/A 0000 IN, Belize. Administrative contact for the domain name: Al Brown.

 

2. The Domain Name and Registrar

The domain name in issue is <deltaairline.com> (hereafter "the domain name").

The domain name was registered with Tucows.com, Inc., 96 Mowat Avenue, Toronto, ON M6K 3M1, Canada.

The domain name was registered on August 15, 1997.

 

3. Procedural History

(1) The Complaint in Case No. D2000-1686 was filed in hardcopy on December 4, 2000, and in email form on December 7, 2000.

(2) The WIPO Arbitration and Mediation Center has found that:

- the Complaint was filed in accordance with the requirements of the Rules and Supplemental Rules for the Uniform Domain Name Dispute Resolution Policy;

- payment for filing was properly made;

- the Complaint complies with the formal requirements;

- the Complaint was properly notified in accordance with the Rules, paragraph 2(a);

- a Response to the Complaint was not filed;

- the Respondent was appropriately served with a Notice of Default; and that

- the Administrative Panel was properly constituted.

As Panelist, I accept these findings.

(3) As Panelist, I submitted a Statement of Acceptance and Declaration of Impartiality and Independence.

(4) There have been neither further submissions nor communications from the Complainant and Respondent, or their representatives, after the appointment of the Panel.

(5) The date scheduled for issuance of a decision is: January 30, 2001.

(6) No extensions have been granted or orders issued in advance of this decision.

(7) The language of the proceedings is English.

 

4. Factual Background

A. The Complainant

The Complainant, Delta Air Lines, Inc., is one of the three largest US airlines. It carries millions of passengers and serves 221 domestic cities in 48 US states, and 118 international cities in 47 countries. The Complainant is amongst the largest 120 companies in the world.

The Complainant has registered a large number of trade and service marks, all of which incorporate the element "DELTA" (collectively the "Delta Family"). Some of the marks in the Delta Family are for the mark "DELTA AIR LINES" in a number of countries and classes (hereafter the "Delta Air Lines marks"). The Delta Air Lines marks are registered in Argentina, Australia, Canada, Costa Rica, France, Guatemala (as a design), and the United States. Most of the marks in the Delta Family cover travel related services, including but not limited to air travel and the related services provided by an airline.

With annual revenues of nearly $15 billion dollars and advertising expenditures in the many millions of dollars, the Delta Family of marks has obtained a large degree of recognition and a strong reputation associated with the Complainant. Delta has invested many millions of dollars into developing the goodwill and consumer recognition of its Delta Family of marks.

B. The Respondent

According to the database accessed at www.betterwhois.com, the Respondent in this administrative proceeding is "Stonybrook Investments, Ltd" with an address as listed above. No Response was filed and so no further information is known about the Respondent.

C. The Use of the Domain Name

On August 15, 1997, the Respondent registered the domain name <deltaairline.com>. At some point subsequent to August 15, 1997, the Respondent began using the domain name to redirect Complainant’s customers to the website of a competitor, Sunfinder Vacations ("Sunfinder"). Sunfinder competes with the Complainant by selling vacation packages and airline tickets of the Complainant’s competitors.

Upon being confronted about this redirection, Sunfinder wrote a letter to an entity known as "Powerclick", which appears to be an entity related to or affiliated with the Respondent, asking it to cease redirecting the Complainant’s customers to Sunfinder. At this time, Sunfinder recognized on its website the likelihood of confusion by acknowledging its viewer had probably mistyped the domain of an "official airline site".

Upon ceasing to redirect the Complainant’s customers to Sunfinder’s website, the Respondent began redirecting the Complainant’s customers to Powerclick’s website located at http://www.lotto.powerclick.com, a website that features gambling.

 

5. Parties’ Contentions

A. The Complainant’s assertions

The Respondent's domain name is identical and|or confusingly similar to each of the marks in the Complainant's Delta Family of marks, and specifically of the Delta Air Lines marks. The Complainant asserts:

(1) similarity of appearance is one of the crucial manners in which a domain name may be confusingly similar to a trade mark, and this occurs notwithstanding addition or deletion of letters;

(2) the domain name is confusingly similar to the Delta Family of marks, given the amount of advertising spent by the Complainant, and where the "airline" component of the domain name is descriptive of the services offered by the Complainant; and

(3) the domain name is confusingly similar to the Delta Air Lines marks, because the deletion of the trailing "s" does not alter the similarity between the domain name and the marks.

The Respondent has no legitimate interest or rights in the domain name. The Complainant asserts:

(1) the Respondent has no trade mark or other intellectual property rights in the domain name or its components, nor does it operate a business under any associated name;

(2) the domain name is not the legal name of the Respondent;

(3) the Respondent has no prior lawful use of the domain name;

(4) the Respondent as an individual, business, or other organization is not commonly known under the domain names; and

(5) the Respondent does not have a legitimate non-commercial or fair use of the domain names.

The Respondent registered <deltaairline.com> and is using it in bad faith. The Complainant asserts:

(1) pursuant to Paragraph 4(b)(i) of the UDRP, the Respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to a competitor of the Complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; and

(2) pursuant to Paragraph 4(b)(iv) of the UDRP, the Respondent intentionally attempted to attract, for commercial gain, Internet users to its web site 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 web site or location or of a product or service on its web site or location.

Accordingly the Panel should order that <deltaairline.com> be transferred to the Complainant.

B. The Respondent’s assertions

The Respondent has not filed a Response.

 

6. Discussion and Findings

Paragraph 4(a) of the UDRP requires the Complainant to make out three elements:

A. The Complainant has rights in a trade or service mark, with which Respondent’s domain name is identical or confusingly similar (paragraph 4(a)(i)); and

B. The Respondent has no rights or legitimate interests in respect of the domain name (paragraph 4(a)(ii)); and

C. The Respondent registered and is using the domain name in bad faith (paragraph 4(a)(iii)).

Looking then at each element in turn.

A. The Complainant has rights in a trade or service mark, with which Respondent’s domain name is identical or confusingly similar.

There are two requirements that the Complainant must establish under this paragraph; that it has rights in a trade or service mark, and that the domain name is identical or confusingly similar.

The Complainant has clearly established the first requirement of this paragraph. It has a large number of trade marks, both the Delta Family of marks for the word mark "Delta" in numerous classes and countries, as well as the more specific Delta Air Lines marks for "Delta Air Lines" in a number of classes in a number of countries. The first requirement of the paragraph is made out.

The second requirement is that the domain name be identical or confusingly similar to the marks. Here the Complainant asserts that the domain name is confusingly similar to its Delta Air Lines and Delta Family of marks, based on three arguments:

(1) similarity of appearance is one of the crucial manners in which a domain name may be confusingly similar to a trade mark, and this occurs notwithstanding addition or deletion of letters;

(2) the domain name is confusingly similar to the Delta Family of marks, given the amount of advertising spent by the Complainant, and where the "airline" component of the domain name is descriptive of the services offered by the Complainant; and

(3) the domain name is confusingly similar to the Delta Air Lines marks, because the deletion of the trailing "s" does not alter the similarity between the domain name and the marks.

I conclude that the domain name is clearly confusingly similar to the Complainant’s marks. The domain name is confusingly similar to both the Complainant’s Delta Family of marks and Delta Air Lines marks. In relation to the Delta Air Lines marks, the deletion of the "s" from the marks -- indicating the singular rather than the plural form -- does not alter the meaning of the domain name, nor does it remove the likelihood of confusion that arises from it. Other cases have concluded that the addition of a numeral to a mark does not alter the likelihood of confusion, see for example Adaptive Molecular Technologies, Inc. v. Priscilla Woodward & Charles R. Thorton, d/b/a Machines & More WIPO case no. D2000-0006 (MILITEC-1 and MILITEC held to be confusingly similar). Equally typographical or other minor alterations do not affect the likelihood of confusion, see for example Yahoo! Inc. v. Eitan Zviely, et al., WIPO case No. D2000-0273; World Wrestling Federation Entertainment Inc (WWFE) .v. M. de Rooij, WIPO case No. D2000-0290; Reuters Limited v Global Net 2000, Inc., WIPO case No. D2000-0441; Diageo p.l.c. v. John Zuccarini, WIPO case No. D2000-0541; Microsoft Corporation v. Global Net 2000, Inc., WIPO case No. D2000-0554; Yahoo! Inc. and GeoCities v. Data Art Corp., DataArt Enterprises, Inc., Stonybrook Investments, Global Net 2000, Inc., Powerclick, Inc., and Yahoo Search, Inc., WIPO case No. D2000-0587.

A fortiori the same observations apply, as here, to marks where the alteration involves the trailing letter "s" thereby changing the sense of the mark from plural to singular, or vice versa. The domain name is clearly confusingly similar to the Delta Air Lines marks.

Alternatively and further, the domain name is confusingly similar to the Delta Family of marks, since the name comprises the mark in conjunction with a description of the service provided by the Complainant.

The Complainant has therefore shown that it has rights in trade marks, and that the domain name is confusingly similar to these marks. I conclude therefore that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the UDRP.

B. The Respondent has no rights or legitimate interests in respect of the domain name.

The Complainant asserts that the Respondent has no rights or legitimate interest in the domain name, as required under paragraph 4(a)(ii) of the UDRP. It makes a number of specific arguments on this point:

(1) the Respondent has no trade mark or other intellectual property rights in the domain name or its components, nor does it operate a business under any associated name;

(2) the domain name is not the legal name of the Respondent;

(3) the Respondent has no prior lawful use of the domain name;

(4) the Respondent as an individual, business, or other organization is not commonly known under the domain names; and

(5) the Respondent does not have a legitimate non-commercial or fair use of the domain names.

There is always a difficulty presented for a Panel where the Respondent fails to file a Response. This difficulty is particularly acute when considering the elements of Paragraph 4(a)(ii): the Complainant may bear the formal burden of proof, but in a practical sense it is really for the Respondent to establish the nature of its legitimate interest. In the absence of a Response one approach is to consider whether any of the defences provided in Paragraph 4(c) might apply. Paragraph 4(c) of the UDRP provides examples of how a Respondent might establish its interests or rights. Though it is not intended to be exhaustive it is useful to see whether any of the examples provided in that paragraph might apply here.

Paragraph 4(c) of the UDRP provides the following examples to the Respondent:

"(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."

Could the Respondent demonstrate its legitimate interest or rights by preparations to use the names in a bona fide offering of services, pursuant to Paragraph 4(c)(i)? The Respondent directed the domain name to a site which competes with the Complainant, which is clearly not a "bona fide offering of services". It could not rely on Paragraph 4(c)(i). For the same reason it could not rely on Paragraph 4(c)(iii), since the direction of the domain name to the commercial competitor is not a legitimate non-commercial or fair use. Finally, Paragraph 4(c)(ii) provides that legitimate interests or rights may be demonstrated by the Respondent if it has been commonly known by the domain name, even without trade or service mark rights. There is no evidence that this is applicable here.

As a result I conclude that, even if I were to take the interpretation most favourable to the Respondent, it has no rights or legitimate interest in the domain name. I conclude that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the UDRP.

C. The Respondent registered and is using the domain name in bad faith.

Which brings me to the final issue, that of bad faith registration and use by the Respondent. For paragraph 4(a)(iii) to apply, the Complainant must demonstrate the conjunctive requirements that the Respondent registered the domain name in bad faith and continues to use it in bad faith.

On the initial question of whether there was bad faith registration, the domain name was registered on August 15, 1997. The Complainant is a huge corporation which had been operating long before this time, and its marks were notorious in the US and internationally long before then. It defies belief that the registration of the domain name <deltaairline.com> could have been in good faith. I conclude that the registration was in bad faith.

As to the ongoing use being in bad faith, the conclusion is equally clear. The Respondent used the domain name to redirect the Complainant’s customers to a competing website, that of Sunfinder Vacations ("Sunfinder"). Sunfinder competes with the Complainant by selling vacation packages and airline tickets of the Complainant’s competitors.

Upon being confronted about this redirection, Sunfinder wrote a letter to an entity known as "Powerclick", which appears to be an entity related to or affiliated with the Respondent, asking it to cease redirecting the Complainant’s customers to Sunfinder. At this point, Sunfinder recognized on its website the likelihood of confusion by acknowledging the viewer had probably mistyped the domain of an "official airline site." The Complainant suggests that a "customer relationship may exist, or may have existed, between Sunfinder and the Respondent and that Respondent received some form of payment or other consideration in excess of Respondent’s out of pocket expenses for the registration of the domain name from Sunfinder for the redirection of Complainant’s customers to the Sunfinder Website." I conclude that this is likely. In the absence of any arguments by way of Response, I conclude that the Respondent’s actions constitute bad faith use as explained in Paragraphs 4(b)(i) and 4(b)(iv) of the UDRP.

Furthermore, upon ceasing to redirect the Complainant’s customers to Sunfinder’s website, the Respondent began redirecting the Complainant’s customers to Powerclick’s website located at http://www.lotto.powerclick.com, a website that features gambling. As the Complainant notes "Presumably, there is an economic benefit to Respondent in increased web traffic resulting from Complainant’s customers being redirected to its gambling website." Again, I conclude that this is likely, and that again the Respondent’s actions constitute bad faith use as explained in Paragraphs 4(b)(i) and 4(b)(iv) of the UDRP.

Finally, I note that the Respondent has been the Respondent in other UDRP proceedings (for example Yahoo! Inc. and GeoCities v. Data Art Corp., DataArt Enterprises, Inc., Stonybrook Investments, Global Net 2000, Inc., Powerclick, Inc., and Yahoo Search, Inc., WIPO case No. D2000-0587). The Complainant has not pleaded Paragraph 4(b)(ii) of the UDRP, which might apply here. Had the Complainant done so, it is likely that this Paragraph would also go against the Respondent.

I conclude that the Complainant has satisfied paragraph 4(a)(iii) of the UDRP.

 

7. Decision

The Complainant has made out all of the elements of paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy.

Pursuant to Rule 15 of the Rules for the Uniform Domain Name Dispute Resolution Policy, the requested remedy is granted.

I hereby order that the domain name <deltaairline.com> be transferred forthwith to the Complainant.

 

 

 

Dan Hunter
Sole Panelist

Dated: January 22, 2001