DECISION

America West Airlines c/o Darrell Jackson v. Thomas Richardson

Claim Number:  FA0312000222037

PARTIES

Complainant is America West Airlines c/o Darrell Jackson (“Complainant”), represented by Christy Hubbard, of Lewis and Roca LLP, 40 N. Central Avenue, Phoenix, AZ 85004.  Respondent is Thomas Richardson (“Respondent”) Silcherstr. 3500, Erkenbrechtsweller, Hamburg 73268, Germany.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <ameriwestairlines.com>, registered with iHoldings.com, Inc. d/b/a 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.

Louis E. Condon as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on December 26, 2003; the Forum received a hard copy of the Complaint on December 29, 2003.

On December 29, 2003, iHoldings.com, Inc. d/b/a dotregistrar.com confirmed by e-mail to the Forum that the domain name <ameriwestairlines.com> is registered with iHoldings.com, Inc. d/b/a dotregistrar.com and that Respondent is the current registrant of the name. iHoldings.com, Inc. d/b/a dotregistrar.com has verified that Respondent is bound by the iHoldings.com, Inc. d/b/a 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 December 31, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 20, 2004 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@ameriwestairlines.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 January 26, 2004, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Louis E. Condon 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 <ameriwestairlines.com> domain name is confusingly similar to Complainant’s AMERICA WEST AIRLINES mark.

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

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

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

FINDINGS

Complainant offers air transportation services.  It holds various registrations under the AMERICA WEST and AMERICA WEST AIRLINES marks (AMERICA WEST, Reg. No. 1,445,610; AMERICA WEST AIRLINES, Reg. Nos. 2,065,046, 1,376,326, 2,081,265).   Complainant registered the AMERICA WEST mark on June 30, 1987, and registered the AMERICA WEST AIRLINES marks on May 27, 1997, December 17, 1985, and July 22, 1997, respectively, with the United States Patent and Trademark Office (“USPTO”).  Complainant also holds the registration for the <americawest.com> and <americawestairlines.com> domain names.

Respondent registered the <ameriwestairlines.com> on September 27, 2003.  The domain name offers links to travel planning services.

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 rights in the AMERICA WEST and AMERICA WEST AIRLINES marks.  Complainant has held trademark registrations with the USPTO for the AMERICA WEST and AMERICA WEST AIRLINES marks since 1987.

Respondent’s <ameriwestairlines.com> domain name is confusingly similar to Complainant’s AMERICA WEST AIRLINES mark.  The difference between the two is the abbreviation of “America” into “ameri.”  A domain name that partially abbreviates a mark does not distinguish it from the trademark.  See Modern Props, Inc. v. Wallis, FA 152458 (Nat. Arb. Forum June 2, 2003) (“Notwithstanding the analysis by Respondent, ‘modprops’ is a contraction or shorthand for ‘Modern Props.’ ‘Mod’ cononotes [sic] ‘modern’ regardless of any other dictionary meanings, so the names are substantially similar in meaning”); see also 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”).

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

Rights or Legitimate Interests

In light of Respondent’s failure to respond to this Complaint, the Panel accepts all reasonable allegations to be true.  See 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 Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with Respondent to demonstrate that it has rights or legitimate interests).

Using a domain name that is confusingly similar to Complainant’s mark, Respondent provides links to travel planning businesses for those who visit its site.  Respondent is not licensed to use this mark, nor is this use fair within the meaning of the Policy.  Respondent’s use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).  See 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 Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that Respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with Complainant, was not a bona fide offering of goods or services).

Nothing in the WHOIS domain name registration information indicates that Respondent is not commonly known as AMERICAN WEST AIRLINES.  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 Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).

The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent has registered and used the <ameriwestairlines.com> domain name to create a likelihood of confusion with Complainant’s AMERICA WEST AIRLINES mark for commercial gain.  Internet users who go to the domain can access links to travel planning businesses.  Additionally, because Respondent’s website offers Complainant’s services and products, the Panel infers that Respondent had notice of Complainant’s right in the mark.  The Panel finds that Respondent has registered and used the disputed domain name in bad faith according to Policy ¶ 4(b)(iv).  See Northwest Airlines, Inc. v. Koch, FA 95688 (Nat. Arb. Forum Oct. 27, 2000) (“the 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 Computerized Sec. Sys., Inc. d/b/a SAFLOK v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that Respondent’s use of the <saflock.com> domain name to offer goods competing with Complainant’s illustrates Respondent’s bad faith registration and use of the domain name which is evidence of bad faith registration and use pursuant to Policy 4(b)(iv)); see also America Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that Respondent intentionally attempted to attract Internet users to his website for commercial gain by creating a likelihood of confusion with Complainant’s mark and offering the same chat services via his website as Complainant).

In addition, because it used a confusingly similar domain name to sell products and services that compete with the Complainant, the Panel finds that Respondent evidenced bad faith registration and use to disrupt the business of a competitor, pursuant to Policy ¶ 4(b)(iii).  See Surface Protection Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between Complainant and Respondent, Respondent likely registered the contested domain name with the intent to disrupt Complainant's business and create user confusion); see also General Media Communications, Inc. v. Vine Ent., FA 96554 (Nat. Arb. Forum Mar. 26, 2001) (finding bad faith where a competitor of Complainant registered and used a domain name confusingly similar to Complainant’s PENTHOUSE mark to host a pornographic web site).

The Panel finds that Policy ¶ 4(a)(iii) has been 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 <ameriwestairlines.com> domain name be TRANSFERRED from Respondent to Complainant.

Louis E. Condon, Panelist

Dated:  February 9, 2004

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