WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ozark Air Lines, Inc. v. Rev. Father Michael Papadopolous
Case No. D2000-1800
1. The Parties
The Complainant is Ozark Air Lines, Inc., a Missouri corporation whose address is 11500 S. Airport Drive, Columbia, MO 65201, USA. The Respondent is Rev. Father Michael Papadopolous of 33 Wood Street, Suite 2605, Toronto, Ontario, M4Y 2P8 Canada.
2. The Domain Name and Registrar
The domain name in issue is "ozarkairline.com".
The Registrar is Tucows.com ("Tucows").
3. Procedural History
A Complaint was originally filed on December 22, 2000, however this was defective as it was sent in hard copy only and without the necessary payment details. The Complaint was properly submitted in electronic form on January 3, 2001.
Confirmation from Tucows was received by the WIPO Arbitration and Mediation Center (the "Center") on January 4, 2001 stating that the Respondent is the current registrant of "ozarkairline.com".
Notice of the proceedings was served on the Respondent on January 4, 2001 in accordance with the rules applicable to the Uniform Domain Name Dispute Resolution Policy ("the Policy").
The Respondent emailed the Center on January 4, 2001 setting out his arguments in 10 points. This email does not appear to have been sent to the Complainant. Subsequently, a hard copy of a document entitled "Complaint" (based on the model Complaint document) was sent by the Respondent to the Center on January 11, 2001 (although, again, this appears not to have been sent to the Complainant).
On January 11, 2001 the Center emailed the Respondent recommending that he resubmit his Response using the appropriate model form and that he ensure that it was also sent to the Complainant. The Respondent filed a Response to the Complaint on January 11, 2001, the hardcopy of which was received by the Center on January 17, 2001 ahead of the deadline of January 24, 2001.
A Panel was constituted on January 22, 2001 with a single panelist, Nick Gardner. A statement of acceptance and declaration of impartiality and independence has been filed by the Panelist.
The date scheduled for the Panel to render its decision is February 5, 2001.
The Complainant is represented by Edward D. Robinson, Jr., Bartimus, Frickleton, Robertson & Obetz, 200 Madison Street, Suite 1000, Jefferson City, MO. 65101 USA. The Respondent is representing himself in this proceeding.
4. Factual Background
The Complainant, Ozark Air Lines, Inc. is described as the successor to a former company, also called Ozark Air Lines, which did business in the Midwestern United States between 1950 and 1986. The Complainant purchased service marks for OZARK AIR LINES INC, and formed a new Missouri Corporation in 1998, with regularly scheduled flights starting in February 2000. The Complainant is therefore the owner of the federal service mark for OZARK AIR LINES INC and of the registered service mark OZARK AIR LINES INC under the state laws of Missouri, Illinois, and Texas, which are the states in which the Complainant is currently doing business.
The service mark OZARK AIR LINES INC is used by the Complainant as the exclusive name for its airline operations, based in Columbia, Missouri. The airline currently operates scheduled flights from Columbia, Missouri to Chicago, Dallas and Joplin, Missouri. The airline also anticipates expanding regularly scheduled flights to Aspen, Kansas City and Minneapolis. The Complainant operates a website at "ozarkair.com".
The Respondent states he was a flight attendant, and is a registered alumni, of the former Ozark Air Lines, which he left in 1978, to study for the priesthood.
The Panel notes that a similar domain name, "ozarkairlines.com", is apparently in use by a third party with the permission of Complainant and is not the subject of this proceeding.
According to a Whois search dated July 18, 2000, the Respondent registered the domain name "ozarkairline.com" on June 12, 2000.
5. The Complainant’s Contentions
These may be summarized as follows:
The Complainant has been doing business under the service mark OZARK AIR LINES INC and has been commonly known by this service mark since 1998.
The Complainant refers to the Respondent as having stated that he is a disgruntled former employee of the former owners of Ozark Air Lines, Inc.
The Complainant says the Respondent is using the domain name "ozarkairline.com" in bad faith in that the domain name is being used primarily for the purpose of disrupting the business of Ozark Air Lines, Inc. and tarnishing the service mark of the Complainant. The Complainant says the Respondent has admitted in written correspondence that this is his intent.
The Complainant states the Respondent has intentionally used his domain name and website misleadingly to divert customers away from doing business with the Complainant and to tarnish its service mark in that the Respondent’s website provides information and links to TWA, the direct competitor of the Complainant. In written correspondence, the Respondent has stated that it is his intent to support and promote the business of TWA, and to divert business from Ozark Air Lines, Inc.
The Respondent is intentionally creating confusion with the legal service mark of the Complainant as to the source, sponsorship, affiliation, or endorsement of his website. The Complainant also says that the Respondent is intentionally providing false, misleading and confusing information about Ozark Air Lines, Inc. in that his website at "ozarkairline.com" currently (at the date of the Complaint) contains only the following information: "Due to situations beyond our control, we have now ceased operations. We sincerely regret any inconvenience that this may cause you. We recommend that you contact TWA for all of your travel needs! For fare, reservation and ‘Internet Only’ special fares on TWA, Click Here."
The Respondent provides no clarification of the above statements. The Complainant says these statements on the Respondent’s website are made with the intent to mislead customers to believe that Ozark Air Lines, Inc. has ceased operations. This is not the case.
In written correspondence (his email dated June 17, 2000), the Respondent has indicated the purpose of selling the domain name registration to the Complainant for valuable consideration.
The Complainant has corresponded with the Respondent to try to persuade him to stop using the domain name "ozarkairline.com" but the Respondent has refused to do so, and has instead continued to use the domain name to cause harm to the business, reputation and service mark of the Complainant.
The remedy sought by Complainant is the immediate transfer to it of the registration of the domain name "ozarkairline.com".
6. The Respondent’s Contentions
These may be summarized as follows:
The Respondent has never used "Ozark Airline" without the "www". in front of it. The Complainant’s assertion that the domain name is identical or confusingly similar to a service mark in which Complainant has rights is untrue. The Complainant does not advertise itself as "ozarkairline.com", does not otherwise use this name and does not use the singular form of "airline" in its name; it uses "Ozark Airlines" in its advertising.
Regarding the Complainant’s statement that the Respondent has no rights or legitimate interests in respect of the domain name, the Respondent is a former Ozark Air Lines employee, (not of the current company but the original Ozark Air Lines). The Respondent says his interest in the name is for sentimental reasons, to promote the memory of the old Ozark Air Lines. The Respondent also says that his intent is to develop the website into one where people can exchange stories, memorabilia and information about all airlines, not merely the former Ozark Air Lines and that this will involve making personal reflections and recommendations about airline carriers. The Respondent says that there are many sites that do exactly the same thing.
The Respondent refutes the Complainant’s suggestion that he is a "former disgruntled Ozark Employee".
The Respondent says he was surprised to receive e-mails from angry potential customers of the Complainant who either could not locate the airline’s actual website, (due to, he claims, poor advertising and choice of domain name, namely, "ozarkair.com"), or because customers were unable to get through by telephone.
The Respondent voluntarily forwarded these messages to the Complainant and subsequently asked the Complainant to remedy the situation, offering to sell the domain name since it appeared that potential customers found it more easily than the Complainant’s current name.
The Respondent admits he supports TWA, explaining that TWA purchased the former Ozark Air Lines and provided the company with continued life, as well as jobs for the many friends that the Respondent left behind.
The Respondent claims that the statement posted on the Internet site referred to by the Complainant was intended to mean that the website was no longer in operation rather than that Ozark Air Lines had ceased operations. He states it is not the Respondent’s intention to disrupt or harm the business of the Complainant and that he is not in competition with Ozark Air Lines, Inc.
The Respondent denies that he has intentionally created confusion with the legal service mark of Ozark Air Lines, Inc. as to the source, sponsorship, affiliation, or endorsement of the website. He adds that the website clearly states that it is not endorsed by TWA.
The Respondent asserts that he is entitled to recommend TWA or any airline over the Complainant and that TWA neither endorses nor compensates him for this.
In response to the Complainant’s statement that he has not provided any further contact or explanation of these statements or of his identity, the Respondent refers to an e-mail link on the website by means of which people can contact him for clarification
The Respondent claims the domain name was registered and used in good faith, stating that he was quite amazed that the current Ozark Air Lines had not registered it because it seemed to be a good choice. However the Respondent subsequently says that he realized that "Ozark Airlines was NOT OzarkAirline" and there was a difference between the two.
The Respondent says the domain name was not registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant, or to a competitor of Complainant, for valuable consideration in excess of Respondent’s out-of-pocket costs. The Respondent admits writing to the Complainant and offering the possibility of selling the domain name but adds that he did not mention a price at all.
In a subsequent letter (dated August 5, 2000), the Respondent stated that "had Ozark Airlines contacted me after I had forwarded several of their emails to inquire about the web domain name, I would have readily agreed to give them the domain for simply the amount of my registration fee."
The Respondent claims to have owned the domain name for several months before even approaching Ozark Air Lines, Inc.
There was no intent by the Respondent to attract commercial gain, or confuse, drive away or otherwise hinder the Complainant. The Respondent says that he has offered to place a link to the Complainant’s website, as is found on the "ozarkairlines.com" website, but received no reply from the Complainant.
The Respondent’s website had been in existence sometime before this dispute arose, which was only after the Respondent voluntarily wrote to the Complainant requesting assistance and informing the Complainant that the Respondent had been re-directing potential passengers who wrote and stated that they could not locate the Ozark Air Lines website or reach them by telephone.
The Respondent states he is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain misleadingly to divert consumers or to tarnish the service marks at issue. The Respondent says he makes no money from the domain or website, that it is purely a forum of public opinion and that his willingness to offer, for no charge, to place a small link to the Complainant’s website if it so desires, shows that he is being fair in this matter.
The Respondent asks the Panel to refuse the requested transfer of the domain name and to make a finding of reverse domain name hijacking on the basis that the Complainant has realized it missed the opportunity to register a domain name which would be a better marketing tool than its current domain name and now wishes to acquire it.
7. Discussion and Findings
The Panel has reviewed the Complaint and the Response and the documents annexed thereto. It has not reviewed the Respondent’s January 4, 2001 email or January 11, 2001, "Complaint" on the basis that these do not appear to have been sent to the Complainant, which therefore has not been able to consider them with a view possibly to responding to them. On the basis of this material this Panel’s finding are set out below.
This dispute properly falls within the scope of the Policy.
The Panel finds the domain name in dispute is confusingly similar to the Complainant’s registered service marks for OZARK AIR LINES INC.
The Panel finds that on the balance of probabilities the disputed domain name was deliberately chosen by the Respondent and intended as a reference to the Complainant. The Complainant started providing scheduled flights in February 2000, and, in any event, the Respondent was clearly aware of the existence of the Complainant at the registration date in June 2000. The Panel relies on the Respondent’s statement in his Response that at the time of registration he was surprised that the domain name had not already been registered by the Complainant.
On the balance of probabilities, the Panel finds that the evidence does not demonstrate that the Respondent had any legitimate basis to register the domain name. The Respondent’s claimed intended use of the domain name in dispute to develop an alumni site is not supported by his subsequent use of the domain name following registration. The Panel infers from the offer made to sell the domain name to the Complainant in the Respondent’s email of June 17, 2000, (only 5 days after the registration of the domain name) that this was the most probable intention at the time of registration.
The Panel also relies upon the reference to a competitor of the Complainant in the June 17, 2000, email (and in subsequent correspondence) as intending to put pressure on the Complainant to acquire the domain name "We are constantly receiving MANY such messages as forwarded to you below from potential Ozark Airlines passengers… Would Ozark Airlines be interested in purchasing our domain name? At the present time, we refer such passengers at our site to the TWA website. It is our intent in the future to simply refer all such inquiries directly to TWA.".
The Panel therefore concludes that the name was registered in bad faith.
Subsequent use in bad faith has been demonstrated in a number of ways, including the website posting, announcing that operations had ceased (see section 4 above), forwarding emails from people (whom the Respondent admits were potential customers of the Complainant) to TWA and directing enquiries to the TWA website, copying to the Complainant responses sent where enquirers were referred to TWA. In addition, the Panel regards the Respondent’s answer to an email dated July 11, 2000, asking how long before the flight the enquirer should arrive at the airport - where the Respondent suggested a time and wished the enquirer "a great flight" - as bad faith: in the circumstances the Respondent was holding out his site as being connected with the Complainant.
Whilst the Respondent may claim to be entitled to recommend the services of TWA over those of the Complainant, the Panel’s view is that the manner in which the Respondent has chosen to do so is inherently misleading and cannot therefore be a legitimate non commercial or fair use of the domain name. The Respondent’s practice of referring to TWA enquiries generated by the Internet site at the domain name, whilst informing the Complainant that it was doing so, inclines the Panel to believe that the Respondent’s main motivation was a wish to persuade the Complainant to offer to buy the domain name.
The Respondent’s conduct in apparently continuing to copy his responses to enquiries about the Complainant’s business to what the Panel assumes is a contact email address for the Complainant (email: email@example.com) with comments such as "without hesitation you are referred to [TWA] for the best flights and fares" (email dated July 11, 2000), is further indication of bad faith use. The assumption by enquirers naturally appears to have been that they were communicating with the Complainant. Nowhere in the replies to enquiries considered by the Panel does the Respondent attempt to correct this misleading impression.
In the Panel’s view the material reviewed does not support the Respondent’s allegation of reverse domain name hijacking. No bad faith by the Complainant has been shown.
In the light of the above findings, the Panel’s decision is as set out below.
The domain name is confusingly similar to the Complainant’s service marks for OZARK AIR LINES INC (see paragraph 4(a)(i) of the Policy).
The Respondent has no rights or legitimate interests in the domain name (see paragraph 4(a)(ii) of the Policy).
The Panel notes that the Respondent does not appear to have made any preparations to use the domain name for the declared alumni site purpose even though a site has apparently been live since June 17, 2000. The Respondent’s manner of using the domain name does not amount to a legitimate non commercial or fair use of the name. Further, the Respondent’s practice of referring potential customers of the Complainant to a competitor’s website is viewed by the Panel as, in the circumstances, more likely to be an attempt to pressurize the Complainant into offering to buy the name than the exercise by the Respondent of his right to voice a preference for TWA’s service.
The domain name was registered and is being used in bad faith (see paragraph 4(a)(iii) of the Policy). The Panel infers that the domain name was registered with the primary intention of selling it to the Complainant for valuable consideration in excess of the Respondent’s out of pocket costs directly related to the domain name (paragraph 4(b)(i) of the Policy).
Evidence of subsequent use in bad faith is the Respondent’s conduct in seeking to elicit offers from the Complainant for the transfer of the disputed domain name, including the posting on the Respondent’s website of an announcement in such a form as falsely to suggest that the Complainant had ceased operating.
The Panel does not make a finding of reverse domain name hijacking by the Complainant.
This Panel directs that the disputed domain name be transferred to the Complainant.