DECISION

America West Airlines v. NA

Claim Number:  FA0311000208019

PARTIES

Complainant is America West Airlines, Tempe, AZ (“Complainant”) represented by Christy Hubbard, of Lewis and Roca LLP, 40 N. Central Avenue, Phoenix, AZ 85004.  Respondent is NA, ul. Purkyniego 12, Wroc³aw, Poland 50-155 (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <amerwest.com>, registered with Enom, Inc.

PANEL

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

Honorable Paul A. Dorf (Ret.) as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on November 3, 2003; the Forum received a hard copy of the Complaint on November 6, 2003.

On November 6, 2003, Enom, Inc. confirmed to the Forum that the domain name <amerwest.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 November 7, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 28, 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@amerwest.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 December 3, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Honorable Paul A. Dorf (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 <amerwest.com> domain name is confusingly similar to Complainant’s AMERICA WEST mark.

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

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

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

FINDINGS

Complainant has successfully registered the AMERICA WEST and AMERICA WEST AIRLINES marks with the United States Patent and Trademark Office on June 30, 1987 (Reg. No. 1445610) and December 17, 1985 (Reg. No. 1376326), respectively.  Complainant has offered air transportation services under these marks since 1983, and in 2002 Complainant became the ninth largest commercial air carrier in the United States. 

Respondent registered the disputed domain name, <amerwest.com>, on November 7, 2000, under the name “NA”, and Respondent listed “Richard Dziadosh” as the administrative contact.  Respondent has used the domain name to sell online gambling services and travel services that compete with Complainant.

In previous domain name disputes, “Richard Dziadosh” has been deemed to be one of several aliases used by one, Alex Vorot, who has a history of cybersquatting.  See e.g., Yahoo!, Inc. and HotJobs.com, Ltd. v. Vorot, FA 159547 (Nat. Arb. Forum July 16, 2003); see also Cox Holdings, Inc. v. Private, D2001-1446 (WIPO Mar. 11, 2002); see also A.H. Belo v. King TV and 5 Kings, D2000-1336 (WIPO Dec. 8, 2000); see also Geoffrey, Inc. v. Babys Russian, D2000-1011 (WIPO Oct. 13, 2000).  The email address listed for “Richard Dziadosh” is the same address Alex Vorot used in a previous case. 

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 and AMERICA WEST AIRLINES marks through registration and continuous use since 1983.  See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that the registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.  Respondent has the burden of refuting this assumption); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive and have acquired secondary meaning”); see also Wal-Mart Stores, Inc. v. MacLeod, D2000-0662 (WIPO Sept. 19, 2000) (finding that the failure of Complainant to register all possible domain names that surround its substantive mark does not hinder Complainant’s rights in the mark. “Trademark owners are not required to create ‘libraries’ of domain names in order to protect themselves”).

In comparing Complainant’s marks with Respondent’s domain name, it is apparent the two are confusingly similar, pursuant to Policy ¶ 4(a)(i), because an abbreviation of a trademark, which the public is readily identified with, does not create a distinctive name that would remove it from the scope of the Policy.  See Microsoft Corp. v. Montrose Corp., D2000-1568 (WIPO Jan. 25, 2001) (finding the domain name <ms-office-2000.com> to be confusingly similar even though the mark MICROSOFT is abbreviated); see also Minn. State Lottery v. Mendes, FA 96701 (Nat. Arb. Forum Apr. 2, 2001) (finding that the <mnlottery.com> domain name is confusingly similar to Complainant’s MINNESOTA STATE LOTTERY registered mark).

Therefore, Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not asserted any rights or legitimate interests in the domain name.  Therefore, the Panel may accept all reasonable inferences of fact in the allegations of Complainant, without the benefit of a Response.  See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the Panel to draw adverse inferences from Respondent’s failure to reply to the Complaint); see also Vert. Solutions Mgmt., Inc. v. Webnet-marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where Complainant has asserted that Respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names).

Additionally, there is no evidence that Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).  The WHOIS registration information fails to imply that Respondent is commonly known by the name.  See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating, “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark).

Furthermore, Respondent is not using the domain name in connection with a bona fide offering of goods or services, nor is it making a legitimate noncommercial or fair use of the name, pursuant to Policy ¶ 4(c)(i) & (iii), because it is using the name to divert Internet users to an online gambling website, as well as a site that competes with Complainant’s transportation services.  See Société des Bains de Mer v. Int’l Lotteries, D2000-1326 (WIPO Jan. 8, 2001) (finding no rights or legitimate interests where Respondent used the <casinomontecarlo.com> and <montecarlocasinos.com> domain names in connection with an online gambling website); see also Imation Corp. v. Streut, FA 125759 (Nat. Arb. Forum Nov. 8, 2002) (finding no rights or legitimate interest where Respondent used the disputed domain name to redirect Internet users to an online casino); see also Oly Holigan, L.P. v. Private, FA 95940 (Nat. Arb. Forum Dec. 4, 2000) (finding no rights or legitimate interest in a misspelled domain name as Respondent was merely using it to redirect Internet users to, inter alia, an online casino); see also Computerized Sec. Sys., Inc. d/b/a SAFLOK v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services); see also Avery Dennison Corp. v. Steele d/b/a Mercian Labels Ltd. and selfadhesivelabels.com, 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); see also Chip Merch., Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were confusingly similar to Complainant’s mark and that Respondent’s use of the domain names to sell competing goods was illegitimate and not a bona fide offering of goods).

Therefore, Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Complainant has established bad faith registration and use, pursuant to Policy ¶ 4(b)(iv), because Respondent has intentionally attracted Internet users to its online gambling services and travel services for commercial gain, by creating a likelihood of confusion with Complainant’s AMERICA WEST mark.  See Mars, Inc. v. Double Down Magazine, D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where Respondent linked the domain name <marssmusic.com>, which is identical to Complainant’s mark, to a gambling website); see also ESPN, Inc. v. Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) (finding bad faith where Respondent linked the domain name to another website <iwin.com>, presumably receiving a portion of the advertising revenue from the site by directing Internet traffic there, thus using a domain name to attract Internet users for commercial gain); see also Encyclopaedia Britannica Inc. v. Shedon.com, D2000-0753 (WIPO Sept. 6, 2000) (finding that Respondent violated Policy ¶ 4(b)(iv) by using the domain name <britannnica.com> to hyperlink to a gambling site).

Furthermore, Respondent has demonstrated a pattern of abusive registrations.  See e.g., Yahoo!, Inc. and HotJobs.com, Ltd. v. Vorot, FA 159547 (Nat. Arb. Forum July 16, 2003); see also Cox Holdings, Inc. v. Private, D2001-1446 (WIPO Mar. 11, 2002); see also A.H. Belo v. King TV and 5 Kings, D2000-1336 (WIPO Dec. 8, 2000); see also Geoffrey, Inc. v. Babys Russian, D2000-1011 (WIPO Oct. 13, 2000).

Therefore, Complainant has also established Policy ¶ 4(a)(iii).

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 <amerwest.com> domain name be TRANSFERRED from Respondent to Complainant.

Honorable Paul A. Dorf (Ret.), Panelist

Dated:  December 15, 2003

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