DECISION

Continental Airlines, Inc. v. Yong Li

Claim Number:  FA0406000290160

PARTIES

Complainant is Continental Airlines, Inc. (“Complainant”), represented by W. Scott Brown, of Vinson & Elkins, L.L.P., 2300 First City Tower, 1001 Fannin Street, Houston, TX 77002-6760.  Respondent is Yong Li (“Respondent”), P.O. Box 904, Beijing, 100029, China.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <wwwcontinental.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.

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

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on June 25, 2004; the Forum received a hard copy of the Complaint on June 28, 2004.

On July 1, 2004, Iholdings.com, Inc. d/b/a Dotregistrar.com confirmed by e-mail to the Forum that the domain name <wwwcontinental.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 July 2, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 22, 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@wwwcontinental.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 July 28, 2004, 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 <wwwcontinental.com> domain name is confusingly similar to Complainant’s CONTINENTAL mark.

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

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

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

FINDINGS

Complainant is the fifth largest United States airline service provider and has enplaned approximately 51 million passengers in 2003.  In connection with its services, Complainant has used the CONTINENTAL mark for air transportation of persons and property since as early as July 1, 1937.  On August 13, 1996, Complainant registered the CONTINENTAL mark with the United States Patent and Trademark Office (Reg. No. 1,993,534) to identify the foregoing services.  In addition, Complainant maintains an Internet presence at the domain name <continental.com>.

Respondent registered the disputed domain name <wwwcontinental.com> on May 29, 2002.  The disputed domain name resolves to a directory for discount airlines, inter alia, located at a subdirectory of the <usseek.com> second-level domain.  In addition, the disputed domain name resolves to the <vipfares.com> domain name, which is an internet-based travel agency that advertises various travel destinations and offers users the opportunity to book flights on various airlines.

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

The registration of a mark with an appropriate government authority is sufficient under the Policy to demonstrate rights in a mark.  Complainant registered the CONTINENTAL mark with the United States Patent and Trademark Office on August 13, 1996.  Therefore, Complainant has sufficiently demonstrated rights to the CONTINENTAL mark under the Policy.  See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Am. Online, Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 2001) (finding that successful trademark registration with the United States Patent and Trademark Office creates a presumption of rights in a mark); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).

A domain name that incorporates a well-known third party’s mark and that merely prefaces the mark with the letters “www” has consistently been determined to be confusingly similar to such a mark under the Policy.  In the instant case, the disputed domain name incorporates Complainant’s CONTINENTAL mark in its entirety.  The letters “www” merely preface Complainant’s mark.  It is apparent that Respondent registered a typosquatted version of Complainant’s CONTINENTAL mark and thus the disputed domain name <wwwcontinental.com> is confusingly similar to the mark pursuant to Policy ¶ 4(a)(i).  See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Marie Claire Album v. Geoffrey Blakely, D2002-1015 (WIPO Dec. 23, 2002) (holding that the letters "www" are not distinct in the "Internet world" and thus Respondent 's <wwwmarieclaire.com> domain name is confusingly similar to Complainant's MARIE CLAIRE trademark); see also Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been established because the prefix "www" does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from Complainant's NEIMAN-MARCUS mark); see also Dana Corporation v. $$$ This Domain Name Is For Sale $$$, FA 117328 (Nat. Arb. Forum Nov. 19, 2002) (finding Respondent's <wwwdana.com> domain name confusingly similar to Complainant's registered DANA mark because Complainant's mark remains the dominant feature).

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

Rights or Legitimate Interests

Respondent has not responded to the Complaint.  As the learned panel stated in Honeywell Int’l Inc. v. Domain Deluxe:

The failure of Respondent to respond to the Complaint functions both as an implicit admission that Respondent lacks rights to and legitimate interests in the domain names, as well as a presumption that Complainant’s reasonable allegations are true. FA 269166 (Nat. Arb. Forum June 29, 2004).

The Panel follows this reasonable characterization in the instant case.  See 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); see also Bloomberg L.P. v. GAF, FA 190614 (Nat. Arb. Forum Oct. 20, 2003) (finding that since Respondent did not come forward to explain what legitimate use it may have had in the domain names, the panel could “presume that Respondent lacks rights and legitimate interests in the domain names at issue”); see also Allergan Inc. v. MedBotox Inc., FA 170639 (Nat. Arb. Forum Sept. 9, 2003) (“Respondent has not challenged the allegations in the Complaint. Under these circumstances it is appropriate for the Panel to accept all reasonable allegations and inferences in the Complaint as true.”).

Typosquatting is a tactic employed by shrewd domain name registrants for the purpose of exploiting Internet users who may, by happenstance, forget to type the period that typically separates the second-level domain from the standard abbreviation for the World Wide Web, i.e. “www.”  According to at least one panel, typosquatting is evidence, in and of itself, that a respondent lacks rights and legitimate interests in a domain name.  See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s <wwwdinersclub.com> domain name, a typosquatted version of Complainant’s DINERS CLUB mark, was evidence in and of itself that Respondent lacks rights or legitimate interests in the disputed domain name vis á vis Complainant).  In the instant case, the Panel finds that the typosquatted domain name has not evidenced a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See 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.”).

There is simply no evidence in the record that Respondent is known by the incoherent name “wwwcontinental.com.”  Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).  See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (finding that the WHOIS information, and its failure to imply that Respondent is commonly known by the disputed domain name, is a 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); 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").

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

Registration and Use in Bad Faith

Typosquatting has been found numerous times to be evidence of bad faith, primarily because of the inherent deceit associated with such a tactic.  Therefore, the Panel finds that Respondent’s registration of the disputed domain name <wwwcontinental.com> was performed in bad faith pursuant to Policy ¶ 4(a)(iii).  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 Canadian Tire Corp., Ltd. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003) (holding that an “absence of a dot between the ‘www’ and ‘canadiantire.com’ [in the <wwwcanadiantire.com> domain name is] likely to confuse Internet users, encourage them to access Respondent’s site” and evidenced bad faith registration and use of the domain name); see also Medline, Inc. v. Domain Active Pty. Ltd., FA 139718 (Nat. Arb. Forum Feb. 6, 2003) (“[I]n typosquatting cases, such as this one, it would be difficult for Respondent to prove to the Panel that it did not have actual knowledge of Complainant’s distinctive MEDLINE mark when it registered the infringing <wwwmedline.com> domain name”).

Furthermore, Respondent has used the typosquatted domain name to redirect Internet users to websites that relate to Complainant’s airline industry. One such website, located at the <vipfares.com> domain name, advertises various travel destinations and offers users the opportunity to book flights on various airlines, presumably including competitors of Complainant.  Using a domain name, which is identical or confusingly similar to a complainant’s mark, to offer goods or services that compete with those offered under a mark owned by a complainant has been found to evidence bad faith pursuant to both Policy ¶¶ 4(b)(iii) and (iv).  Yet, the Panel declines to base its decision on Policy ¶ 4(b)(iii) due to both the minimal evidence provided as to the nature of Respondent’s business and to the sufficiency in grounding its findings on Policy ¶ 4(b)(iv).  Indeed, the Panel finds that Respondent has intentionally attempted to attract Internet users to its websites for commercial gain by creating a likelihood of confusion with Complainant’s CONTINENTAL mark, which is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).  See Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 15, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where Respondent initially used the domain name at issue to resolve to a website offering similar services as Complainant into the same market); see also Computerized Sec. Sys., Inc. 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, pursuant to Policy ¶ 4(b)(iv)); see also TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where Respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of Complainant).

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

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

Dated:  August 9, 2004

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