Delta Air Lines, Inc. v. Whois Privacy Corp.; WhoisGuard, Inc.; Domain Protection Services, Inc.; PrivacyGuardian.org; Steve David; Kamran Khan; Domain Admin, Whois Privacy Corp.; Steven Fransworth; Lisa Alex; Natasha Gupta; Asgar Khan; Marcellus Coleman; Steve David; Raul Bogdan; Irfan Khan; Waseem A Ali; Tonicia Kelly; James Vills; George Eden, YPS
Case No. D2018-1564
1. The Parties
The Complainant is Delta Air Lines, Inc. of Atlanta, Georgia, United States of America ("United States"), represented by Wellborn, Wallace & Woodard, LLC, United States.
The Respondents are Whois Privacy Corp. of Bahamas; WhoisGuard, Inc. of Panama; Domain Protection Services, Inc. of Denver, Colorado, United States; PrivacyGuardian.org of Phoenix, Arizona, United States; Steve David of Dubai, United Arab Emirates ("UAE"); Kamran Khan of Karachi, Pakistan; Domain Admin, Whois Privacy Corp. of Nassau, Bahamas; Steven Fransworth of Huntington Beach, California, United States; Lisa Alex of Torri, Pakistan; Natasha Gupta of Haryana, India; Asgar Khan of Chennai, India; Marcellus Coleman of North Brunswick, New Jersey, United States; Steve David of Dubai, United Arab Emirates; Raul Bogdan of Targu Jiu, Romania; Irfan Khan of Lahore, Pakistan; Waseem A Ali of Brooklyn, New York, United States; Tonicia Kelly is of Alpharetta, Georgia, United States; James Vills of New York, New York, United States; George Eden, YPS of Retford, United Kingdom of Great Britain and Northern Ireland ("United Kingdom").
The disputed domain name <delta-free.com> is registered with Name.com, Inc. (Name.com LLC).
The disputed domain name <delta-promo.life> is registered with TLD Registrar Solutions Ltd.
The disputed domain names <delta-tickets-offer.life>, <delta-tickets-offers.life>, <delta-tickets2018.com>, and <delta-tickets2018.life> are registered with NameSilo, LLC.
In this decision the disputed domain names above will be referred to collectively as the Disputed Domain Names.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 11, 2018. On July 12, 2018, the Center transmitted by email to the Registrars a request for registrar verification in connection with the Disputed Domain Names. On July 12, 2018, July 13, 2018, and July 18, 2018 the Registrars transmitted by email to the Center its verification response disclosing registrants and contact information for the Disputed Domain Names which differed from the named Respondents and contact information in the Complaint. The Center sent an email communication to the Complainant on July 23, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 27, 2018.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondents of the Complaint, and the proceedings commenced on July 30, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 19, 2018. The Respondents did not submit any response. Accordingly, the Center notified the Respondents' default on August 20, 2018.
The Center appointed John Swinson as the sole panelist in this matter on August 27, 2018. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant is Delta Air Lines, Inc., an American corporation registered in Delaware with its principal place of business in Atlanta, Georgia. The Complainant is one of the world's largest commercial airlines, generating over USD 36 billion in annual revenue and serving more than 160 million customers each year.
The Complainant owns several registered trade marks which comprise of or incorporate the term DELTA, including American registered trade mark number 0523611 for DELTA registered on November 19, 1957 (the "Trade Mark"). The Complainant owns a registered domain name which incorporates the Trade Mark, being <delta.com>.
The Respondents in the proceedings are:
- Steve David;
- Kamran Khan; - Whois Privacy Corp; - Steven Fransworth; - Lisa Alex; - Natasha Gupta; - Marcellus Coleman; - Raul Bogdan; - Ifran Khan; - Waseem A Ali; - Tonica Kelly; - James Vills; and - George Eden.
No response was received from any of the Respondents and consequently little information is known about the Respondents.
At present, most of the Disputed Domain Names do not resolve to active websites. However, the Complainant has provided evidence to show that, at the time the Complaint was filed, each of the Disputed Domain Names resolved to a similar website which offered free Delta Air Line tickets for completing a survey on that website. Each of the websites featured the well-known Delta trade mark in logo format.
5. Parties' Contentions
The Complainant makes the following submissions:
Identical or confusingly similar
The Disputed Domain Names are identical and/or confusingly similar to the Trade Mark. The Disputed Domain Names all contain the exact mark DELTA.
Rights or legitimate interests
The Respondents have no rights or legitimate interests in the Disputed Domain Names because the Complainant has not granted any permission to the Respondents to use the Trade Mark.
The Respondents have not used the Disputed Domain Names in connection with a bona fide offering of goods or services. The Respondents have not been commonly known by any of the Disputed Domain Names or the Trade Mark. The business names under which Respondents operate are not readily apparent from the names of the registrants or the contents of the websites at the Disputed Domain Names.
The Respondents are not making any legitimate noncommercial or fair use of the Disputed Domain Names, without intent for commercial gain. They are attempting to divert customers or to tarnish the Trade Mark and business of the Complainant.
The Respondents have registered the Disputed Domain Names for the purpose of attracting, for commercial gain, Internet users to Disputed Domain Names by creating a likelihood of confusion with the Complainant's Trade Mark as to the source, sponsorship, affiliation or endorsements of the Disputed Domain Names.
The Respondents did not reply to the Complainant's contentions.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) the Respondents have no rights or legitimate interests in respect of the Disputed Domain Names; and
(iii) the Disputed Domain Names have been registered and are being used in bad faith.
The onus of proving these elements remains on the Complainant even though Respondents have not filed a Response.
A. Procedural Issues – Multiple Respondents
Where a single complaint is filed against multiple respondents, in deciding whether to consolidate the proceeding, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties (see section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0")). There are 13 different Respondents in this proceeding. The Panel must consider whether consolidation is appropriate in these circumstances.
Previous panels have found that proceedings with multiple respondents may be heard in a single complaint, where it is clear that the same person is registering different domain names using a fictitious alias (see Yahoo!, Inc v. Somsak Sooksripanich and Others,
WIPO Case No. D2000-1461; Amazon.com, Inc. v. Lorna Kang a/k/a Yong Li a/k/a Mahmoud Nadim a/k/a The Data in Bulkregister.com's WHOIS Database is p a/k/a Amjad Kausar,
WIPO Case No. D2005-0635 and General Electric Company v. Marketing Total S.A,
WIPO Case No. D2007-1834).
It is likely that the Disputed Domain Names were registered by, or at the direction of, the same person. All 50 domain names were registered within a 90 day period using a privacy service. The Complainant has provided evidence that all of the Disputed Domain Names contain identical survey content, which supports a finding that they are subject to common control. The Panel considers that it would be procedurally efficient and fair to the Parties to consolidate the proceedings in these circumstances.
B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Names are identical or confusingly similar to the Trade Mark. There are 50 domain names that comprise the Disputed Domain Names, all of which include the Trade Mark, together with variations of other generic terms.
A number of the Disputed Domain Names contain the new generic Top-Level Domain ("gTLD") ".life" (e.g., <deltafreetickets.life>). The use of a new gTLD can, in some circumstances, play a role in determining identity or confusing similarity. However, in this case, the new gTLD ".life" does not serve such a purpose. It is a generic term and as such the Panel considers that ".life" can be ignored for the purpose of testing confusing similarity, in the same way that ".com" is generally ignored (see, e.g., Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic,
WIPO Case No. D2000-1698).
The Disputed Domain Names add a combination of numbers or generic terms such as "tickets" or "free" to the Trade Mark. The Trade Mark is recognizable in all of the Disputed Domain Names. In cases where at least the dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing (see section 1.7 of the WIPO Overview 3.0).
The Panel finds that the Disputed Domain Names are confusingly similar to the Trade Mark. The Complainant succeeds on the first element of the Policy.
C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondents have no rights or legitimate interests in respect of the Disputed Domain Names. The Complainant is required to make out a prima facie case showing that the Respondents lack rights or legitimate interests.
The Panel finds that the Complainant has made out a prima facie case. This finding is based on the following:
- The Respondents are not using the Disputed Domain Names in connection with a bona fide offering of goods or services, nor have they made legitimate noncommercial or fair use of the Disputed Domain Names. The Complainant has provided evidence that the websites at each of the Disputed Domain Names contained a fraudulent survey which was likely designed to harvest data from Internet users. This is not consistent with the holding of rights or legitimate interests.
- The Complainant has not licensed or otherwise authorised the Respondents to use the Disputed Domain Names.
- The Respondents have not been commonly known by the Disputed Domain Names nor do they have any registered or common law rights in the Disputed Domain Names.
- The Respondents have not been making a legitimate noncommercial or fair use of the Disputed Domain Names without intent for commercial gain. It is likely that the Respondents are using the Disputed Domain Names to mislead Internet users into believing the Respondents are associated with the Complainant, presumably for commercial gain.
The Respondents had the opportunity to demonstrate their rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy.
D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondents registered and subsequently used the Disputed Domain Names in bad faith.
The Panel accepts the Complainant's submission that it is highly likely the Respondents registered the Disputed Domain Names with the Complainant in mind. The Complainant has used the Trade Mark since 1934 and has a strong world-wide reputation in the Trade Mark. The Respondents have registered the Disputed Domain Names 84 years after the Complainant commenced business. The Complainant has developed a significant reputation in the Trade Mark and it is famous world-wide. Panels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith (see section 3.1.4 of the WIPO Overview 3.0).
The Respondents have registered 50 Disputed Domain Names which incorporate the Trade Mark.
It therefore appears that the Respondents have engaged in a pattern of conduct of registering domain names confusingly similar to the Complainant's Trade Mark. Panels have found a pattern of abuse where a respondent registers, simultaneously or otherwise, multiple trademark-abusive domain names corresponding to the distinct marks of individual brand owners (see section 3.1.2 of WIPO Overview 3.0). This is evidence of bad faith registration and use under paragraph 4(b)(ii) of the Policy.
Taking into account the Complainant's reputation and the pattern of the Respondents registering similar domain names targeting the Complainant's reputation, the Panel considers that the Respondents are intentionally attempting to attract, for commercial gain users to its website by creating a likelihood of confusion with the Trade Mark, which is evidence of bad faith registration and use under paragraph 4(b)(iv) of the Policy. This conclusion is supported by the content of the websites at the Disputed Domain Names at the time the Complaint was filed, which provided links to fraudulent surveys (representing to be offered by the Complainant) which appeared to be harvesting data from Internet users for illegitimate purposes.
In light of the above and in the absence of a Response and any evidence rebutting bad faith registration and use, the Panel finds that the Complainant has succeeded on the third element of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Names <deltaair-freebie.life>, <delta-airline.life>, <deltaairline.life>, <delta-airline-tickets.life>, <deltaairlinetickets.life>, <delta-air-ticket.life>, <delta-airways-tickets.life>, <delta-celebration.life>, <deltachristmasgift.life>, <delta-com.life>, <deltacom.life>, <delta-com-tickets.life>, <delta-freebie.life>, <delta-free.com>, <delta-free.life>, <deltafreetickets.life>, <deltair.info>, <deltairtickets.life>, <delta-newyear.life>, <delta-prize.life>, <delta-promo.life>, <delta-promos.info>, <delta-ticket.life>, <deltaticket.life>, <delta-tickets-free.life>, <delta---tickets.life>, <delta--tickets.life>, <delta-tickets.life>, <deltatickets.life>, <delta-tickets-offer.life>, <delta-tickets-offers.life>, <delta-tickets2018.com>, <delta-tickets2018.life>, <delta2.life>, <delta2ticket.life>, <delta2tickets.life>, <delta2017.life>, <delta-2018-offer.life>, <delta4.life>, <delta5.life>, <freedeltatickets.life>, <getdeltatickets.life>, <getfreedeltatickets.life>, <get2deltaticket.life>, <get2deltatickets.life>, <mydelta.life>, <offerdelta.life>, <thedeltair.life>, <2deltaairtickets.life>, and <2deltatickets.life> be transferred to the Complainant.
John Swinson Sole Panelist Date: September 10, 2018
Stay updated! Get new cases and decisions by daily email.