DECISION

America West Airlines, Inc. v. North American Leasing LLC

Claim Number:  FA0401000232956

PARTIES

Complainant is America West Airlines (“Complainant”), represented by Emily A. Bayton, of Lewis and Roca, LLP, 40 N. Central Avenue, Phoenix, Arizona 85004.  Respondent is North American Leasing LLC (“Respondent”), 237 Tramway Drive, Lake Tahoe, Nevada 89449.

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <americawestacations.com>, <americawestavcations.com>, <americawestbacations.com>, <americawestcacations.com>, <americawestvaactions.com>, <americawestvaations.com>, <americawestvacaions.com>, <americawestvacaitons.com>, <americawestvacarions.com>, <americawestvacatiins.com>, <americawestvacatinos.com>, <americawestvacatins.com>, <americawestvacatiobs.com>, <americawestvacatioms.com>, <americawestvacationa.com>, <americawestvacationd.com>, <americawestvacatios.com>, <americawestvacatiosn.com>, <americawestvacatipns.com>, <americawestvacatoins.com>, <americawestvacatoons.com>, <americawestvacatuons.com>, <americawestvacayions.com>, <americawestvacstions.com>, <americawestvactaions.com>, <americawestvavations.com>, <americawestvaxations.com>, <americawestvcaations.com>, <americawestvcations.com>, <americawestvscations.com>, <ameriacwestvacations.com>, <ameriawestvacations.com>, <americswestvacations.com>, <americwestvacations.com>, <amerivawestvacations.com> and <amerixawestvacations.com>, registered with Wild West Domains, Inc.

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.

Hon. Ralph Yacnin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 28, 2004; the Forum received a hard copy of the Complaint on January 30, 2004.

On January 30, 2004, Wild West Domains, Inc. confirmed by e-mail to the Forum that the domain names <americawestacations.com>, <americawestavcations.com>, <americawestbacations.com>, <americawestcacations.com>, <americawestvaactions.com>, <americawestvaations.com>, <americawestvacaions.com>, <americawestvacaitons.com>, <americawestvacarions.com>, <americawestvacatiins.com>, <americawestvacatinos.com>, <americawestvacatins.com>, <americawestvacatiobs.com>, <americawestvacatioms.com>, <americawestvacationa.com>, <americawestvacationd.com>, <americawestvacatios.com>, <americawestvacatiosn.com>, <americawestvacatipns.com>, <americawestvacatoins.com>, <americawestvacatoons.com>, <americawestvacatuons.com>, <americawestvacayions.com>, <americawestvacstions.com>, <americawestvactaions.com>, <americawestvavations.com>, <americawestvaxations.com>, <americawestvcaations.com>, <americawestvcations.com>, <americawestvscations.com>, <ameriacwestvacations.com>, <ameriawestvacations.com>, <americswestvacations.com>, <americwestvacations.com>, <amerivawestvacations.com> and <amerixawestvacations.com> are registered with Wild West Domains, Inc. and that Respondent is the current registrant of the names. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, 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 February 2, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 23, 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@americawestacations.com, postmaster@americawestavcations.com, postmaster@americawestbacations.com, postmaster@americawestcacations.com, postmaster@americawestvaactions.com, postmaster@americawestvaations.com, postmaster@americawestvacaions.com, postmaster@americawestvacaitons.com, postmaster@americawestvacarions.com, postmaster@americawestvacatiins.com, postmaster@americawestvacatinos.com, postmaster@americawestvacatins.com, postmaster@americawestvacatiobs.com, postmaster@americawestvacatioms.com, postmaster@americawestvacationa.com, postmaster@americawestvacationd.com, postmaster@americawestvacatios.com, postmaster@americawestvacatiosn.com, postmaster@americawestvacatipns.com, postmaster@americawestvacatoins.com, postmaster@americawestvacatoons.com, postmaster@americawestvacatuons.com, postmaster@americawestvacayions.com, postmaster@americawestvacstions.com, postmaster@americawestvactaions.com, postmaster@americawestvavations.com, postmaster@americawestvaxations.com, postmaster@americawestvcaations.com, postmaster@americawestvcations.com, postmaster@americawestvscations.com, postmaster@ameriacwestvacations.com, postmaster@ameriawestvacations.com, postmaster@americswestvacations.com, postmaster@americwestvacations.com, postmaster@amerivawestvacations.com and postmaster@amerixawestvacations.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 March 16, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Ralph Yachnin 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 names be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s disputed domain names are confusingly similar to Complainant’s AMERICA WEST VACATIONS mark.

2. Respondent does not have any rights or legitimate interests in the disputed domain names.

3. Respondent registered and used the disputed domain names 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 AMERICA WEST mark (U.S. Reg. No. 1,445,610) since 1983. By 2002, Complainant was the eighth largest commercial air carrier in the United States, and today includes 93 destinations in North America with more than 800 daily departures. By 1990, when Complainant was receiving annual revenues of over $1 billion, it began arranging travel tours under the AMERICA WEST VACATIONS mark (U.S. Reg. No. 2,361,406, registered on June 27, 2000). Complainant currently offers its travel tour services online at the <americawestvacations.com> domain name, as well as through its primary website at the <americawest.com> domain name.

Respondent, North American Leasing LLC, registered the disputed domain names on November 25, 2003, without license or permission to use the AMERICA WEST VACATIONS mark for any purpose. All of the disputed domain names redirect Internet users to a default website that appears to be identical to Complainant’s official AMERICA WEST VACATIONS website at the <americawestvacations.com> domain name. This duplicate of Complainant’s website offers services such as booking airline tickets, hotels and vacation packages, services that are identical to those supplied by Complainant. 

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 through registration of the mark on the Principal Register of the U.S. Patent and Trademark Office. See Microsoft Corp. v. J. Holiday Co., D2000-1493 (WIPO Feb. 20, 2000) (“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.”).

Respondent’s domain names are all confusingly similar to Complainant’s AMERICA WEST VACATIONS mark. Thirty of the disputed domain names feature misspellings of the word VACATIONS in Complainant’s mark, while the words AMERICA WEST remain unaltered. For this reason, the <americawestacations.com>, <americawestavcations.com>, <americawestbacations.com>, <americawestcacations.com>, <americawestvaactions.com>, <americawestvaations.com>, <americawestvacaions.com>, <americawestvacaitons.com>, <americawestvacarions.com>, <americawestvacatiins.com>, <americawestvacatinos.com>, <americawestvacatins.com>, <americawestvacatiobs.com>, <americawestvacatioms.com>, <americawestvacationa.com>, <americawestvacationd.com>, <americawestvacatios.com>, <americawestvacatiosn.com>, <americawestvacatipns.com>, <americawestvacatoins.com>, <americawestvacatoons.com>, <americawestvacatuons.com>, <americawestvacayions.com>, <americawestvacstions.com>, <americawestvactaions.com>, <americawestvavations.com>, <americawestvaxations.com>, <americawestvcaations.com>, <americawestvcations.com> and <americawestvscations.com> domain names are all confusingly similar to Complainant’s mark. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks).

The other six domain names, <ameriacwestvacations.com>, <ameriawestvacations.com>, <americswestvacations.com>, <americwestvacations.com>, <amerivawestvacations.com> and <amerixawestvacations.com>, misspell the word AMERICA in some fashion, while properly spelling the words WEST VACATIONS from Complainant’s mark. As with the previously analyzed domain names, these domain names are but slight variations of Complainant’s AMERICA WEST VACATIONS mark, and are all confusingly similar to that mark. See id.

Accordingly, the Panel finds that the disputed domain names are confusingly similar to Complainant’s AMERICA WEST VACATIONS mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent’s lack of rights and legitimate interests is evidenced initially by the fact that none of the disputed domain names spell an actual phrase., The domain names have value only in that they are each misspellings of Complainant’s AMERICA WEST VACATIONS mark, which Respondent has utilized without authorization by Complainant. See Encyclopaedia Britannica, Inc. v. Zuccarini, D2000-0330 (WIPO June 7, 2000) (finding that fair use does not apply where the domain names are misspellings of Complainant's mark); see also Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting, as a means of redirecting consumers against their will to another site, does not qualify as a bona fide offering of goods or services, whatever may be the goods or services offered at that site.”).

The fact that Respondent is using the disputed domain names to, in effect, pass itself off as Complainant is additional evidence that Respondent lacks rights and legitimate interests in the disputed domain names. Internet users who mistype Complainant’s mark and are subsequently routed through Respondent’s websites will likely believe that they are dealing with Complainant, and this deception by Respondent is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain names pursuant to Policy ¶ 4(c)(iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that as Respondent attempted to pass itself off as Complainant online, through wholesale copying of Complainant’s website, Respondent had no rights or legitimate interests in the disputed domain name).

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent’s method of registering a series of domain names that are misspellings of Complainant’s AMERICA WEST VACATIONS mark is a clear-cut case of typosquatting, and its attempt to use the goodwill Complainant has built up around its mark for its own ends is evidence that the domain names were registered and used in bad faith. See Nat’l Ass’n of  Prof’l Baseball Leagues v. Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith.”); see also  L.L. Bean, Inc. v. Cupcake Patrol, FA 96504 (Nat. Arb. Forum Mar. 12, 2001) (finding that Respondent acted in bad faith by establishing a pattern of registering misspellings of famous trademarks and names).

Respondent’s use of each of its domain names is not for any independent business or service, but is instead geared towards giving Internet users the impression that Respondent and Complainant are closely linked. In duping Internet users into believing that Respondent is associated with, or acutally is, Complainant, Respondent’s activities further evidence bad faith use of the disputed domain names. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where Respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . .  In a nutshell, Respondent used the disputed domain name to perpetrate a fraud”); see also Vivendi Universal Games v. Ballard, FA 146621 (Nat. Arb. Forum Mar. 13, 2002) (finding that where Complainant’s mark was appropriated at registration, and a copy of Complainant’s website was used at the domain name in order to facilitate the interception of Complainant’s customer’s account information, Respondent’s behavior evidenced bad faith use and registration of the domain name).

The Panel thus finds that Respondent registered and used the disputed domain names 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 <americawestacations.com>, <americawestavcations.com>, <americawestbacations.com>, <americawestcacations.com>, <americawestvaactions.com>, <americawestvaations.com>, <americawestvacaions.com>, <americawestvacaitons.com>, <americawestvacarions.com>, <americawestvacatiins.com>, <americawestvacatinos.com>, <americawestvacatins.com>, <americawestvacatiobs.com>, <americawestvacatioms.com>, <americawestvacationa.com>, <americawestvacationd.com>, <americawestvacatios.com>, <americawestvacatiosn.com>, <americawestvacatipns.com>, <americawestvacatoins.com>, <americawestvacatoons.com>, <americawestvacatuons.com>, <americawestvacayions.com>, <americawestvacstions.com>, <americawestvactaions.com>, <americawestvavations.com>, <americawestvaxations.com>, <americawestvcaations.com>, <americawestvcations.com>, <americawestvscations.com>, <ameriacwestvacations.com>, <ameriawestvacations.com>, <americswestvacations.com>, <americwestvacations.com>, <amerivawestvacations.com> and <amerixawestvacations.com> domain names be TRANSFERRED from Respondent to Complainant.

Hon. Ralph Yachnin, Panelist

Justice, Supreme Court, NY (Ret.)

Dated:  March 18, 2004

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