DECISION

Vancouver International Airport Authority v. Mike Flynn

Claim Number:  FA0402000238662

PARTIES

Complainant is Vancouver International Airport Authority (“Complainant”), P.O. Box 23750, Airport Postal Outlet, Richmond, British Columbia, Canada V7B 1Y7.  Respondent is Mike Flynn (“Respondent”), 425 W. 58th St., New York, NY 10019.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <vancouverinternationalairport.com>, registered with Intercosmos Media Group, Inc. d/b/a Directnic.com.

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 February 23, 2004; the Forum received a hard copy of the Complaint on February 25, 2004.

On Feburary 24, 2004, Intercosmos Media Group, Inc. d/b/a Directnic.com confirmed by e-mail to the Forum that the domain name <vancouverinternationalairport.com> is registered with Intercosmos Media Group, Inc. d/b/a Directnic.com and that Respondent is the current registrant of the name. Intercosmos Media Group, Inc. d/b/a Directnic.com has verified that Respondent is bound by the Intercosmos Media Group, Inc. d/b/a Directnic.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 February 26, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 17, 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@vancouverinternationalairport.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 30, 2004, 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 <vancouverinternationalairport.com> domain name is identical to Complainant’s VANCOUVER INTERNATIONAL AIRPORT mark.

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

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

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

FINDINGS

Complainant is an international airport.  Complainant registered the VANCOUVER INTERNATIONAL AIRPORT mark on August 25, 1995 with the Canadian Registrar of Trade-marks (Reg. No. 446,368).  Complainant holds the domain name registration for <yvr.com>.

The Panel construes Complainant’s exhibits as follows:

Respondent registered <vancouverinternationalairport.com> on February 16, 2004.  Respondent is using the disputed domain name to redirect Internet users to <selwynduke.com>—a site with “provocative polemical writing.”  Prior to Respondent, the disputed domain name was registered to Ari Kahn (as late as January 15, 2004), Anti-Globalization Domains (as late as September 30, 2003), Pro-Life Domains (as late as June 10, 2003). When registered to Pro-Life domains, the disputed domain name forwarded traffic to <abortionismurder.org>.

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 VANCOUVER INTERNATIONAL AIRPORT mark according to its registration and use in commerce.  See 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 Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that Panel decisions have held that 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).

The <vancouverinternationalairport.com> domain name is identical to Complainant’s mark.  The only difference is the omission of the spaces between the words, which does not significantly distinguish the domain name from Complainant’s mark.  See Croatia Airlines v. Kwen Kijong, AF-0302 (eResolution Sept. 25, 2000)  (finding that the domain name <croatiaairlines.com> is identical to Complainant's CROATIA AIRLINES trademark); see also Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding that the domain name <wembleystadium.net> is identical to the WEMBLEY STADIUM mark).

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has not answered the Complaint.  In the absence of a Response, the Panel is allowed to accept all reasonable assertions to be true.  See Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (drawing two inferences based on Respondent’s failure to respond: (1) Respondent does not deny the facts asserted by Complainant, and (2) Respondent does not deny conclusions which Complainant asserts can be drawn from the facts); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).

Complainant alleges that Respondent is using the disputed domain name to redirect Internet users to <selwynduke.com>—a site with “extreme polemic writing deliberately designed to provoke the user.”  Using a domain name that fully incorporates Complainant’s mark to express ideas that are not sanctioned by Complainant is not a bona fide offering of goods or services, pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of the domain name, pursuant to Policy ¶ 4(c)(iii).   See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (holding that Respondent’s showing that it “has a right to free speech and a legitimate interest in criticizing the activities of organizations like the Complainant . . . is a very different thing from having a right or legitimate interest in respect of [a domain name that is identical to Complainant’s mark]”); see also E. & J. Gallo Winery v. Hanna Law Firm, D2000-0615 (WIPO Aug. 3, 2000) (finding that establishing a legitimate free speech/complaint site does not give rights to use a famous mark in its entirety).

There is nothing in the record, including the WHOIS registration information for the domain name, that indicates that Respondent is known by <vancouverinternationalairport.com>.  Respondent is not commonly known by the domain name, pursuant to Policy ¶ 4(c)(ii).  See 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); see also 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 RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").

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

Registration and Use in Bad Faith

Respondent is using the <vancouverinternationalairport.com> domain name to voice provocative political writing.  The disputed domain name is identical to Complainant’s mark.  Using the domain name to express views implies damage, and is evidence of bad faith registration and use, pursuant to Policy 4(a)(iii).  See Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (stating that although Respondent’s complaint website did not compete with Complainant or earn commercial gain, Respondent’s appropriation of Complainant’s trademark with a view to cause “damage and disruption to [Complainant] cannot be right, still less where the use of the Domain Name will trick internet users intending to visit the trademark owner’s site into visiting the registrant’s site” in holding that the disputed domain name was registered in bad faith); see also Jenner & Block LLC v. Defaultdata.com, FA 117310 (Nat. Arb. Forum Sept. 27, 2002) (“Respondent’s argument that there is an inherent conflict between the Internet and the Constitutional right to free speech at the address to a business sounds impressive but is no more correct that than the argument that there is a Constitutional right to intercept telephone calls to a business in order to speak to customers. Respondent’s conduct is not the equivalent of exercising the right of free speech outside Complainant’s business street address but of impermissibly blocking traffic to that street address”).

The Panel finds that Complainant has satisfied 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 <vancouverinternationalairport.com> domain name be TRANSFERRED from Respondent to Complainant.

Honorable Paul A. Dorf  (Ret.), Panelist

Dated:  April 14, 2004

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