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and Mediation Center
Southwest Airlines Co. v. Lorna Kang
Case No. D2004-0921
1. The Parties
The Complainant is Southwest Airlines Co. of Dallas, Texas, United States of America, represented by Piper Rudnick of Los Angeles, California, United States of America.
The Respondent is Lorna Kang of Telok Intan, Perak, Malaysia.
2. The Domain Name and Registrar
The disputed domain name <southwes.com> is registered with iHoldings.com
Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 4, 2004. On November 5, 2004, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On November 18, 2004, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 23, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was December 13, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 30, 2004.
The Center appointed John Lambert as the sole panelist
in this matter on January 6, 2005. 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,
4. Factual Background
The Complainant is a Texas company. Its principal business is civil aviation. It also offers to its passengers and perhaps others car hire, hotel booking and package holidays, including overseas cruises. Save for those cruises, all those services appear to be delivered within the United States of America.
Even though the Complainant does not appear to do much business outside the United States, it clearly does a great deal within that country. In terms of passengers carried on domestic flights it is the 4th largest airline in the United States, carrying 64 million passengers a year to 59 destinations with an average of 2,800 flights a day. Its annual expenditure on advertising exceeds US $100 million.
The Complainant has traded in the name or style of ‘Southwest Airlines Co.’ since March 1971, when it changed its name from “Air Southwest Co”. According to the certificate of registration for United States trademark registration no. 1,230,381, the Complainant began using the word SOUTHWEST arranged in an orange, red and gold parallelogram on June 8, 1971.
The Complainant subsequently registered that and a number of other signs as United States trademark and service marks. The most relevant registration for the purposes of these proceedings is the sign SOUTHWEST.COM which is registered for
“travel agency services, namely making reservations and bookings for transportation; providing information in the field of travel by means of a global computer network”
in class 39 under registration no 2,623,807 with effect from February 21, 2001. The significance of that registration is that the Complainant receives many of its bookings through the Internet. In the first quarter of 2002, for instance, Internet transactions accounted for 46% of its revenue.
Save that her address is a PO Box at Telok Intan in Malaysia and that she has been the respondent in several similar proceedings (reports of which the Complainant’s legal representatives helpfully submitted), nothing is known of the Respondent. She chose not to respond to these proceedings and the reports of the other cases indicate that she did not respond to the complaints in those cases either.
When the URL “www.southwes.com” is entered
into a browser, a site appears inviting bookings for air travel, car hire and
hotels. That site appears to be directed towards residents of or, at least,
travelers in the United States. Save for Mexico, all the towns and cities where
hotels could be booked were in the United States. The proper law of the terms
and conditions of the web site was that of Illinois. Airline booking services
were offered through a Florida company called ‘Princeline.com Inc.’
That company’s computer system was unable to quote a fare for a flight
between Kuala Lumpur and Djakarta in Indonesia. An error message explained that
the departure airport had to be in the United States.
5. Parties’ Contentions
The Complainant submitted that it has satisfied all the probanda of paragraph 4(a) of the Policy. It referred to its several trade mark registrations and also to its reputation among the traveling public in the United States by reference to those marks. It contended that the disputed domain name is confusingly similar to its marks. It argued that the Respondent could have no legitimate interest in the disputed domain name because her use of that name is and always was actionable, at least in the United States. The Complainant pointed to the history of the Respondent’s conduct in similar domain name disputes. It added that she had continued to use the disputed domain name even after the Complainant’s rights had been drawn to her attention in a letter before action. The Complainant concluded that such continued use evidences bad faith and that it would be fair to infer that the domain name had been registered in bad faith.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
Each and every one of the probanda of paragraph 4(a) of the Policy is satisfied.
A. Identical or Confusingly Similar
The disputed domain name differs from the Complainant’s registered service mark SOUTHWEST.COM by only one letter. The Respondent’s site offers the same services to the same market as those for which that mark is registered. Because the disputed domain name is similar to the registered mark and the services offered by the Respondent are identical to those for which that mark was registered, there exists a likelihood of confusion on the part of the public. It follows that the disputed domain name is confusingly similar to a service mark in which the Complainant has rights.
B. Rights or Legitimate Interests
The only use to which the disputed domain name appears to have been put is one that infringes a registered service mark in the United States. Based on the case file, and in the absence of evidence of any other use, it must follow that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
According to paragraph 4(b)(iv) of the Policy, one of the circumstances in which bad faith in the registration and use of a domain name may be found is where an attempt is made to attract for commercial gain Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location or of a product or service on the Respondent’s web site or location.
Having already found a likelihood of confusion on the part of the public, it is reasonable to infer that would include a likelihood of association with the Complainant’s mark.
Moreover, it is reasonable to suppose that at least some visitors to the Respondent’s web site believe that the services offered on that web site are supplied, authorized or franchised by the Complainant’s airline.
It appears to the Panel that an attempt has been made to attract for commercial
gain Internet users to the Respondent’s web site by creating a likelihood
of confusion with the Complainant’s mark as to the source, sponsorship,
affiliation or endorsement of the Respondent’s web site within the meaning
of paragraph 4(b)(iv). Consequently, it may be inferred that the disputed domain
name was registered and has been used in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <southwes.com> be transferred to the Complainant.
Dated: January 15, 2005