The Complainant is American Airlines, Inc., United States of America (“United States”), represented by Greenberg Traurig, LLP, United States.
The Respondents are Super Privacy Service Ltd c/o Dynadot LLC, United States / Domain Admin, Netlas, United States, Cyan Yo, China, James Dupont, United States, Zhichao, China, and Milen Radumilo, Romania.
The disputed domain names <americanairlinesflagship.com>, <americanairlinesphonenumbers.com>, <americanairlinesretireesite.com>, and <americanairliness.com> are registered with Dynadot, LLC.
The disputed domain name <americanairlinescheckin.com> is registered with Above.com, Inc. (together with Dynadot, LLC, collectively hereinafter referred to as the “Registrars”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 12, 2021. On February 15, 2021, the Center transmitted by email to the Registrars requests for registrar verifications in connection with the disputed domain names. On February 17 and 20, 2021, the Registrars transmitted by email to the Center their verification responses disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 22, 2021, providing the registrant and contact information disclosed by the Registrars, and informing the Complainant that the Complaint was administratively deficient. The Complainant filed an amended Complaint on February 27, 2021.
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 March 1, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 21, 2021. The Respondents did not submit any responses. Accordingly, the Center notified the Respondents’ default on March 22, 2021.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on March 26, 2021. 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.
The Complainant is a major international airline of some 90 years standing based in the United States. Its first and business class services are branded “Flagship”. Prior to the Covid-19 pandemic the Complainant flew nearly 7,000 flights per day to destinations in over 50 countries.
The Complainant holds some hundreds of registered trademarks, the earliest dating back to 1948, and has used the trademark AMERICAN AIRLINES since 1934. The following trademarks are representative for present purposes:
AMERICAN AIRLINES, United States Patent and Trademark Office (USPTO), principal register, registered April 19, 2016, registration number 4939082, in classes 35, 37, 39, 41, and 43;
AMERICAN AIRLINES, USPTO, principal register, registered September 5, 2017, registration number 5279167, in classes 9 and 38;
FLAGSHIP, USPTO, principal register, registered February 9, 2016, registration number 4897371, in classes 39 and 43.
The Complainant owns and does business through a number of domain names, including <aa.com> for its primary website, and <americanairlines.com>, which redirects to the former. The Complainant also has over 2.5 million followers on Facebook and 1.6 million followers of Twitter.
Nothing of significance is known about the Respondent in respect of each disputed domain name except for such names and contact details as were proffered to the respective Registrar for registration purposes. The disputed domain names were registered on the following dates: <americanairlinesflagship.com> on February 20, 2020; <americanairlinesphonenumbers.com> on November 16, 2020; <americanairlinesretireesite.com> on March 6, 2020; <americanairlinescheckin.com> on June 27, 2020; and <americanairliness.com> on September 22, 2003. Each resolves to a parking page displaying advertising links to other websites.
The Complainant says it believes all five disputed domain names are under common control, notwithstanding their apparently different registrants. The Complainant submits that in accordance with paragraphs 3(c) and 10(e) of the Rules, the Complaints should be consolidated into a single proceeding.
The Complainant says the disputed domain names are confusingly similar to trademarks in which the Complainant has rights. The Complainant and its services are heavily promoted through its own website, which was created in 1998. Each disputed domain name incorporates the entirety of the Complainant’s widely used and well-known trademark AMERICAN AIRLINES. One of the disputed domain names, <americanairlinesflagship.com>, also includes the Complainant’s registered trademark FLAGSHIP, which is the Complainant’s trademark branding of its Flagship Business and Flagship First Class services. The addition of generic words in the disputed domain names, or the erroneous spelling by means of an additional letter “s”, do not avoid confusing similarity.
The Complainant contends that the Respondents have not been authorised in any way to use the Complainant’s trademarks and have no rights or legitimate interests in respect of the disputed domain names. The Respondents had no authority to use the Complainant’s trademarks for the registration of the disputed domain names. The Respondents are not commonly known by the disputed domain names, which are not in use or in preparation for use in connection with a bona fide offering of goods or services, and there has been no protected noncommercial or fair use of them. The Complainant says the disputed domain names divert traffic to advertising links that are presumed to be pay-per-click links. The disputed domain name <americanairliness.com> has been offered for sale at a price of USD 688.
The Complainant says the disputed domain names were registered and are being used in bad faith.
The Complainant submits that in accordance with previous cases under the Policy, the registration of a domain name incorporating the entirety of the registered trademark of a well-known airline is sufficient for a finding of opportunistic bad faith. The Respondents had obvious knowledge and constructive knowledge of the Complainant’s trademarks, in both the United States and China.
The Complainant says the disputed domain names have resolved to websites that seek to divert Internet traffic to advertising links for commercial gain. Some of the links are to travel and booking websites in competition with the Complainant’s own similar services.
The Complainant says that the three disputed domain names <americanairlinescheckin.com>, <americanairlinesphonenumbers.com> and <americanairlinesretireesite.com> have active mail exchange records, showing they are set up for email purposes. This is suggestive that these disputed domain names may be intended for phishing or fraudulent email communications.
The disputed domain name <americanairliness.com> is offered for sale at the domain name marketplace AfterNic, at an asking price presumably in excess of the Respondent’s out-of-pocket registration costs.
The Complainant says that registration of the disputed domain names under a privacy service in the particular circumstances of this dispute, making it difficult to identify and contact the true registrants, also amounts to registration in bad faith.
The Complainant contends that a blocking registration constitutes bad faith where there is evidence it is part of a pattern of such conduct. According to the Complainant’s research of WIPO panel decisions under the Policy, there have been over 80 decisions against Respondent Milen Radumilo; over 60 decisions against Respondent Zhichao; and at least 6 decisions against Respondent Cyan Yo. Mostly these have included well-known trademarks such as GEICO, CALVIN KLEIN, IBM and WHATSAPP, and many have utilised the privacy service Super Privacy Service LTD c/o Dynadot.
The Complainant has cited a number of previous decisions under the Policy that it considers may be helpful to the Panel.
The Complainant requests the transfer of the disputed domain names.
The Respondents did not reply to the Complainant’s contentions.
Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable dispute resolution provider, in compliance with the Rules, that:
“(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.”
The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute.
Paragraph 10(e) of the Rules states: “A Panel shall decide a request by a Party to consolidate multiple domain name disputes in accordance with the Policy and these Rules.” The Complainant requests that the proceedings against the Respondents in respect of all five disputed domain names shall be consolidated into a single case.
Paragraph 3(c) of the Rules states:
“The complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder.”
Thus, the consolidation of complaints against two or more apparently different respondents is not directly addressed in the Rules. In order to accede to the request for the Complaints to be consolidated, the Panel must be reasonably sure that the disputed domain names are held, or are effectively controlled, by a single entity. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) has reviewed 10 typical criteria, without limitation, that various panels have from time to time noted in seeking to assess commonality of control. It is for the Complainant to advance its case for consolidation.
In deciding the instant request, the Panel has taken into account criteria proposed by the Complainant that may be summarised as follows:
(1) the disputed domain names all incorporate the Complainant’s trademarks, with only slight differences such as the typo in <americanairliness.com> or the addition of generic words that describe the Complainant’s airline services;
(2) the registrar Dynadot LLC was the same for all disputed domain names until at least February 1, 2021 and now is the same for all except <americanairlinescheckin.com>, which is registered with Above.com, Inc.;
(3) the disputed domain names <americanairlinescheckin.com>, <americanairlinesphonenumbers.com> and <americanairlinesretireesite.com> are all hosted with the IP address 199.59.242.153 and have the same mail exchange (MX) records mx76.mb1p.com and mx76.m2b.com;
(4) the disputed domain names are all being used in the same way, as they resolve to websites with highly similar content that uses the Complainant’s well-known trademark to redirect traffic to websites with advertising links, some being to websites offering services in competition with the Complainant;
(5) the Respondents all used Gmail addresses in the registration of the disputed domain names;
(6) the purported registrant names and contact information are unusual.
The Complainant is therefore of the view that a single entity may have registered the disputed domain names with false names and contact information.
In the Panel’s finding, point (1) is of little consequence, being almost diagnostic of grounds for complaint under the Policy. The Complainant has itself previously brought complaints in respect of at least 10 other domain names under the Policy.
In respect of point (2), there is no reason to believe Dynadot LLC is other than a long established and respected Registrar with a large number of clients and there is no evidence the use of that registrar for five of the disputed domain names is other than coincidental.
Point (3) is of significance. The hosting of the disputed domain names <americanairlinescheckin.com>, <americanairlinesphonenumbers.com> and <americanairlinesretireesite.com> is at the same IP address. Shared hosting does not necessarily equate with common ownership. The same MX record may have many users. Having regard to all the circumstances, however, the Panel considers it to be more probable than not, on balance, that these three disputed domain name are under common control.
Point (4) is not considered significant because, although similar website content can be indicative, the websites to which these disputed domain names have resolved are not in any way distinctive. As is common in similar complaints, they have resolved to holding pages monetised by the provision of remunerative links, which the advertising service may tailor to the field of business connected with the domain name. The generic five colour parking page to which the disputed domain names <americanairlinescheckin.com>, <americanairlinesphonenumbers.com> and <americanairlinesretireesite.com> have all resolved is commonly used for the purpose and does little to add to the perception of commonality of control applying to these three disputed domain names.
In Apple, Inc. v. WhoIs Privacy Services Pty Ltd. / Stanley Pace / Shahamat / Kent Mansley / Phoebe Aoe / Tammy Caffey / Staci Michele / Layne Fletcher / Hiroko Tadano / Keith Besterson / Andrew Devon, WIPO Case No. D2013-1312, the respective Panelist said: "With this service, Sedo provides a domain name with a generic ‘landing page’. The use of such a landing page, however, is insufficient to demonstrate common control” (denying consolidation of 14 of 17 domain names).
A clear distinction can be drawn with the present Complainant’s earlier case American Airlines, Inc. v. Ramadhir Singh, WhoisGuard Protected, WhoisGuard, Inc. / Reema Gupta, Ballu Balwant, Domain Admin, Privacy Protect, LLC (PrivacyProtect.org) / Lucy Lionel, Lucy99, Red Keep, WIPO Case No. D2021-0294. In that case, according to the evidence stated in the respective decision, five of the seven domain names at the time, and according to the Wayback Machine the remaining two at an earlier date, had all been linked not merely to parking pages but to “similar websites displaying the AMERICAN mark, as well as various images of the Complainant’s airplanes and personnel, allegedly providing travel booking services and customer services related to the Complainant’s airlines. These websites included telephone numbers indicated as ‘toll free numbers’, as well as email addresses and other contact details”. That is different from the instant case, and the respective Panelist granted consolidation.
Gmail (point 5) is said to have some 1.5 billion users and its use by the various Respondents carries no weight.
Point (6) is endemic in connection with the use of false contact details by respondents generally.
The Panel has also considered the Complainant’s conviction that there is common control against the criteria listed in WIPO Overview 3.0. Many criteria would not stand alone and but may lend weak support where a stronger probability has already been identified. For instance it is in the nature of the Complainant’s business that the disputed domains indeed target a specific sector, namely the travel industry, and their naming patterns have similarities in the format “trademark+other words or characters”, which is common.
The disputed domain names <americanairlinesflagship.com> and <americanairliness.com> could not convincingly be associated with the ownership or common control of the other three.
The Panel studied the course of action pursued in The American Automobile Association, Inc. v. PrivacyProtect.org/ Domain Tech Enterprises/ and The American Automobile Association, Inc. v. PrivacyProtect.org/Tarun Kumar and The American Automobile Association, Inc. v. Publishier LLC., WIPO Case No. D2011-2202, in which consolidation was denied. The respective Panelist in that case decided to proceed with three separate complaints against three apparently different respondents and to issue three separate decisions within a single case. This procedure, however, has not apparently been cited in any subsequent case, is not mentioned in WIPO Overview 3.0, and there is no overt support for such a procedure in the Policy or the Rules.
The decision of the Panel therefore is to consolidate and proceed in respect of the three disputed domain names <americanairlinescheckin.com>, <americanairlinesphonenumbers.com> and <americanairlinesretireesite.com>, hereinafter referred to as the disputed domain names, and their respective putative registrants being referred to as the Respondent in the singular.
In respect of the disputed domain names <americanairlinesflagship.com> and <americanairliness.com>, the Complaints are terminated without prejudice to their being refiled.
The Panel is satisfied that the Complainant has rights in the registered trademark AMERICAN AIRLINES.
The three disputed domain names <americanairlinescheckin.com>, <americanairlinesphonenumbers.com> and <americanairlinesretireesite.com> exhibit the Complainant’s trademark prominently and in its entirety. Neither the additional words “check in”, “phone numbers”, or “retiree site”, nor the presence of the technically necessary generic Top-Level Domain “.com”, prevent a finding of confusing similarity. The Panel finds these disputed domain names to be confusingly similar to the Complainant’s trademark and finds for the Complainant under paragraph 4(a)(i) of the Policy.
The Complainant has stated a prima facie case to the effect that the Respondent has not been permitted or licensed to use the Complainant’s trademarks and has no rights or legitimate interests in respect of the disputed domain names.
Paragraph 4(c) of the Policy provides for the Respondent to contest the Complainant’s prima facie case under paragraph 4(a)(ii) of the Policy and to establish rights or legitimate interests in a disputed domain name by demonstrating, without limitation:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The disputed domain names resolve to parking pages displaying links and are found not to be in use in connection with a bona fide offering of goods or services. There is no evidence the Respondent is commonly known by the disputed domain names or that they are in any noncommercial or fair use within the meaning of the Policy.
The Respondent has not responded and has not asserted any rights or legitimate interests in the disputed domain names under the provisions of paragraphs 4(c)(i), (ii) or (iii) of the Policy or otherwise. The Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain names and finds for the Complainant under paragraph 4(a)(ii) of the Policy.
The Complainant must prove under paragraph 4(a)(iii) of the Policy that each disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy states four illustrative circumstances, without limitation, that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
Perusal of the screen captures produced in evidence, made on February 1, 2021, shows each disputed domain name resolving to a generic and presumably host-provided parking page with seven broadly related links or link category headings. Links appearing on the <americanairlinesphonenumbers.com> website are the likes of “Telephone Numbers” and “Find Phone Numbers”. Those associated with <americanairlinesretireesite.com> include “Medicare Advantage Plans” and “United Medicare Advantage”. Links associated with <americanairlinescheckin.com> notably include references to the Complainant's competitors such as “Vuelos Baratos Ryanair” and “Delta Airlines Reservations”.
It may reasonably be concluded on the balance of probabilities that the parking pages have been monetised in the usual way, whereby an agency places links to advertisers that pay a commission when they receive visitors who have clicked on a link provided on the Respondent’s website, part of which commission is paid to the Respondent. Since the principal means of attracting visitors to the Respondent’s websites is the display of the Complainant’s trademark in each disputed domain name, this amounts to the attraction of Internet users for the Respondent’s commercial gain by confusion with the Complainant’s trademark, constituting use in bad faith within the terms of paragraph 4(b)(iv) of the Policy. On the totality of the evidence, it may reasonably be deduced that the disputed domain names were registered for the bad faith purposes for which they have been used.
Whilst the use of a privacy service in and of itself may be entirely legitimate, the action loses legitimacy if the underlying intention has been to obstruct the service of the Complaint. On the balance of probabilities in this instance, the use of a privacy service is found to have been for the purpose of attempting to avoid or delay the service of the Complaint and is found to be a contributing factor in bad faith (Ebay Inc. v. Ebay4sex.com and Tony Caranci, WIPO Case No. D2000-1632).
On the evidence and on the balance of probabilities the Panel finds that the disputed domain names <americanairlinescheckin.com>, <americanairlinesphonenumbers.com> and <americanairlinesretireesite.com> have been registered and used in bad faith under paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders the disputed domain names <americanairlinescheckin.com>, <americanairlinesphonenumbers.com>, and <americanairlinesretireesite.com> to be transferred to the Complainant.
For the foregoing reasons the proceedings are terminated without prejudice in respect of the disputed domain names <americanairlinesflagship.com> and <americanairliness.com>.
Dr. Clive N.A. Trotman
Sole Panelist
Date: April 9, 2021