DECISION

America West Airlines, Inc. v. Domains To Develop

Claim Number:  FA0309000192760

PARTIES

Complainant is America West Airlines, Inc., Tempe, AZ (“Complainant”) represented by Bruce Samuels, of Lewis and Roca, LLP.  Respondent is Domains To Develop, USA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <americanwestvacation.com>, registered with Iholdings.Com, Inc. d/b/a Dotregistrar.Com (hereinafter “Dotregistrar.Com”).

PANEL

The undersigned certifies that he has acted independently and impartially and, to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on September 4, 2003; the Forum received a hard copy of the Complaint on September 8, 2003.

On September 8, 2003, Dotregistrar.Com confirmed by e-mail to the Forum that the domain name <americanwestvacation.com> is registered with Dotregistrar.Com and that Respondent is the current registrant of the name. Dotregistrar.Com has verified that Respondent is bound by the Dotregistrar.Com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On September 9, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 29, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@americanwestvacation.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On October 14, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <americanwestvacation.com> domain name is confusingly similar to Complainant’s AMERICA WEST VACATIONS mark.

2. Respondent does not have any rights or legitimate interests in the <americanwestvacation.com> domain name.

3. Respondent registered and used the <americanwestvacation.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, America West Airlines, Inc., has offered air transportation services under the registered AMERICA WEST and AMERICA WEST AIRLINES marks since 1983 (e.g. U.S. Reg. No. 1,376,326 for the AMERICA WEST AIRLINES mark). By 2002, Complainant was the ninth largest commercial air carrier in the United States, and currently services 92 destinations across North America. In 1990, Complainant began arranging travel tours under the AMERICA WEST VACATIONS mark (U.S. Reg. No. 2,361,406, registered on June 27, 2000). Information about these tours is available at Complainant’s <americawestvacations.com> domain name.

Respondent, Domains To Develop, registered the <americanwestvacation.com> domain name on July 15, 2002. Respondent uses the disputed domain name to offer airline tickets and travel packages. The website at which these services are offered also uses Complainant’s AMERICA WEST AIRLINES mark.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2) Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Complainant has established rights in the AMERICA WEST VACATIONS mark though registration of the mark on the Principal Register of the U.S. Patent and Trademark Office, as well as through widespread and continuous use of the mark in commerce.

Respondent’s <americanwestvacation.com> domain name is confusingly similar to Complainant’s AMERICA WEST VACATIONS mark. Other than the addition of the letter “n” to the word AMERICA and the elimination of the letter “S” after the word VACATION in Complainant’s registered mark, the disputed domain name is identical to the mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); see also Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding that Respondent’s domain name, <americanonline.com>, is confusingly similar to Complainant’s famous AMERICA ONLINE mark).

Accordingly, the Panel finds that the <americanwestvacation.com> domain name is confusingly similar to Complainant’s AMERICA WEST VACATIONS mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent uses the disputed domain name to offer services similar to those provided by Complainant under the registered AMERICA WEST VACATIONS mark. However, Respondent was not licensed or authorized to use Complainant’s mark when it registered and began using the disputed domain name. Without permission to use Complainant’s mark, Respondent cannot be considered to be making a bona fide offering of goods or services at the disputed domain name. Nor is Respondent using the domain name for any legitimate noncommercial or fair use. Thus, Respondent is unable to avail itself of the safe harbor provisions of Policy ¶¶ 4(c)(i) and (iii). See Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (finding that Respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with Complainant, was not a bona fide offering of goods or services); see also Avery Dennison Corp. v. Steele, FA 133626 (Nat. Arb. Forum Jan 10, 2003) (finding that Respondent had no rights or legitimate interests in the disputed domain name where it used Complainant’s mark, without authorization, to attract Internet users to its business, which competed with Complainant).

Given the fame of Complainant’s AMERICA WEST VACATIONS mark and Respondent’s lack of authorization to use Complainant’s mark, the Panel finds that Respondent is not “commonly known by” the disputed domain name, making Policy ¶ 4(c)(ii) inapplicable in this dispute. See Foot Locker Retail, Inc. v. Gibson, FA 139693 (Nat. Arb. Forum Feb. 4, 2003) (“Due to the fame of Complainant’s FOOT LOCKER family of marks…and the fact that Respondent’s WHOIS information reveals its name to be “Bruce Gibson,” the Panel infers that Respondent was not “commonly known by” any of the disputed domain names prior to their registration, and concludes that Policy ¶ 4(c)(ii) does not apply to Respondent”); see also Victoria’s Secret v. Asdak, FA 96542 (Nat. Arb. Forum Feb. 28, 2001) (finding sufficient proof that Respondent was not commonly known by a domain name confusingly similar to Complainant’s VICTORIA’S SECRET mark because of Complainant’s well-established use of the mark).

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <americanwestvacation.com> domain name under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent is seeking to trade off of the fame of Complainant’s AMERICA WEST VACATIONS mark in order to compete with Complainant’s travel tour business. Respondent’s competing website capitalizes on a likelihood of confusion between its domain name registration and Complainant’s registered marks. Thus, Respondent’s activities run afoul of Policy ¶ 4(b)(iv), and evidence bad faith use and registration of the disputed domain name. See Northwest Airlines, Inc. v. Koch, FA 95688 (Nat. Arb. Forum Oct. 27, 2000) (“[T]he selection of a domain name [northwest-airlines.com] which entirely incorporates the name of the world’s fourth largest airline could not have been done in good faith”); see also Singapore Airlines Ltd v. P & P Servicios de Communicacion S.L., D2000-0643 (WIPO Aug. 29, 2000) (“The domain name ‘singaporeairlines.com’ is so obviously connected with a well-known airline that its very registration and use by someone with no connection to the airline suggests opportunistic bad faith.  Indeed, it is hard to imagine a more blatant exercise in ‘cybersquatting’”).

The Panel thus finds that Respondent registered and used the <americanwestvacation.com> domain name in bad faith, and that Policy ¶ 4(a)(iii) is satisfied.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <americanwestvacation.com> domain name be TRANSFERRED from Respondent to Complainant.

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated:  October 27, 2003

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