WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

American Airlines, Inc. v. Privacydotlink Customer 3584241 / 杨智超 (Zhichao Yang) / D.L. Webb, Privacydotlink Customer 3584241

Case No. D2021-1097

1. The Parties

The Complainant is American Airlines, Inc., United States of America (“US”), represented by Greenberg Traurig, LLP, US.

The Respondents are Privacydotlink Customer 3584241 / 杨智超 (Zhichao Yang), China, and D.L. Webb, US (collectively referred to as the “Respondent”).

2. The Domain Names and Registrars

The disputed domain name <usairwsys.com> is registered with GoDaddy Online Services Cayman Islands Ltd (the “Second Registrar”) (the First Registrar and the Second Registrar collectively referred to as the “Registrars”).

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on April 9, 2021. On April 12, 2021, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On April 15, 2021, the Registrars transmitted by email to the Center its verification response 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 April 20, 2021 providing the registrant and contact information disclosed by the Registrars, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint in English on April 22, 2021.

On April 20, 2021, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant submitted its request that English be the language of the proceeding on April 20, 2021. The Respondent did not comment on the language of the proceeding.

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 Respondent in English and Chinese of the Complaint, and the proceeding commenced on May 6, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 26, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 8, 2021.

The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on June 28, 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.

4. Factual Background

A. Complainant

The Complainant is is one of the largest air carriers in the world and enjoys a reputation in the US and internationally as a premier airline for business and leisure travellers.

The Complainant is the owner of numerous registrations for its trade marks USAIR and U S AIRWAYS (the “Trade Mark(s)”), registered and used for many years in respect of the Complainant’s airline services, including US registration No. 1243867 for the Trade Mark USAIR, with a registration date of June 28, 1983; and US registration No. 2360851 for the Trade Mark U S AIRWAYS, with a registration date of June 20, 2000.

B. Respondent

The Respondent 杨智超 (Zhichao Yang) is apparently an individual with an address in China.

The Respondent D.L. Webb is apparently an individual with an address in the US.

C. The Disputed Domain Names

The disputed domain name <usairbizcard.com> was registered on June 15, 2020.

The disputed domain name <usairbarkleycard.com> was registered on July 21, 2020.

The disputed domain name <usairwsys.com> was registered on March 22, 2006.

D. The Websites at the Disputed Domain Names

The disputed domain names previously all resolved to English language parking pages with sponsored links relating to airlines and travel (the “Websites”). The disputed domain names still resolve to the Websites except for the disputed domain name <usairwsys.com> which currently directs to a website with the heading of Uniregistry stating “Welcome to usairwsys.com. This name has expired”.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain names are confusingly similar to the Trade Marks, the Respondent has no rights or legitimate interests in respect of the disputed domain names, and the disputed domain names were registered and are being used in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

6.1. Consolidation of Respondents

Section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) provides as follows:

“Where a complaint is filed against multiple respondents, 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. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.”

The disputed domain names <asairways.com>, <eusairways.com>, <hsairways.com>, <isairways.com>, <lusairways.com>, <ufairways.com>, <uisair.com>, <upsairways.com>, <usaiirways.com>, <usairawys.com>, <usairbarkleycard.com>, <usairbizcard.com>, <usairl.com>, <usairsays.com>, <usairwauys.com>, <usairwayws.com> and <usairyways.com> are each registered in the name of “杨智超 (Zhichao Yang)”, apparently an individual resident in China, and with Alibaba Cloud Computing (Beijing) Co., Ltd., a registrar based in China (the language of the registration agreements being in Chinese). These disputed domain names were all registered in June/July 2020 (15 of which were registered on the same date, July 30, 2020)

The disputed domain name <usairwsys.com> is registered in the name of “D.L. Webb”, apparently an individual resident in the US, and with GoDaddy Online Services Cayman Islands Ltd, a registrar based in the US (the language of the registration agreement being English). This disputed domain name was registered on March 22, 2006.

The Complainant contends that there should be consolidation of the Respondents in the present proceeding, for the following reasons:

(i) the disputed domain names are highly similar in that they all incorporate the Complainant’s Trade Marks, with only slight differences in spelling, or additions of generic words that are associated with the Complainant;

(ii) the disputed domain names are all hosted on the same IP address, with identical name servers,

and identical mail exchange (MX) records; and

(iii) the disputed domain names are being used in the same way as they resolve to the Websites with sponsored links.

Notwithstanding the above factors, the Panel considers there are insufficient grounds, on the facts herein, to support the conclusion that the disputed domain name <usairwsys.com> is subject to common control by the registrant of the remaining disputed domain names.

For example, the Panel notes the absence of facts or arguments relating to other factors panels have considered relevant in assessing consolidation scenarios, such as similarities in or relevant aspects of: (a) the registrants’ identity(ies) including pseudonyms, (b) the registrants’ contact information including email address(es), postal address(es), or phone number(s), including any pattern of irregularities, (c) relevant webhost(s), (d) any changes by the respondent relating to any of the above items following communications regarding the disputed domain name(s), (e) any evidence of respondent affiliation with respect to the ability to control the disputed domain name(s), (f) any (prior) pattern of similar respondent behavior, and most notably as already mentioned above, (g) the lack of similarity in the timing (and chosen registrar) in respect of the disputed domain name <usairwsys.com> as compared to the remainder which were registered on or around the same date using the same registrar and by the same Registrant, 杨智超 (Zhichao Yang).

The Panel therefore declines to order consolidation of the registrant of the disputed domain name <usairwsys.com>, D.L. Webb, as a Respondent herein, without prejudice to the Complainant’s right to file a fresh complaint under the Policy with respect to the disputed domain name <usairwsys.com>.

As such, hereinafter any reference to “the Respondent” shall be to 杨智超 (Zhichao Yang); and any reference to “the disputed domain names” shall be to the above listed 17 disputed domain names excluding the disputed domain name <usairwsys.com>.

6.2. Language of the Proceeding

The language of the Registration Agreement for the remaining disputed domain names is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement.

Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burden being placed on the parties and undue delay to the proceeding.

In support of its language request, the Complainant contends that the disputed domain names contain Latin script and are based upon or derived from the Complainant’s English language Trade Marks, and they all resolve to English language Websites, all of which demonstrate that the Respondent is proficient in the English language.

The Respondent did not file a Response and did not file any submissions with respect to the language of the proceeding.

In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the proposed language, time and costs.

The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in the English language.

The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.

In all the circumstances, the Panel therefore finds it is unlikely that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.

Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.

6.3. Substantive Elements of the Policy

The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail .

A. Identical or Confusingly Similar

The Panel finds that the Complainant has rights in the Trade Marks acquired through use and registration.

The disputed domain names <usairbarkleycard.com> and <usairbizcard.com> incorporate the entirety of the Complainant’s USAIR Trade Mark (see WIPO Overview 3.0, section 1.7) together with, respectively, a misspelling of a credit card offered by a well-known bank (“barclaycard”); and the abbreviated term “bizcard”.

Where a relevant trade mark is recognisable within a disputed domain name, the addition of a third party trade mark (or a misspelling of the same) is insufficient of itself to avoid a finding of confusing similarity (see WIPO Overview 3.0, section 1.12).

Where a relevant trade mark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8).

The remaining disputed domain names consist of common, obvious, or intentional misspelling of the Complainants’ relevant Trade Marks (see WIPO Overview 3.0, section 1.9).

The Panel therefore finds that the disputed domain names are confusingly similar to the Complainant’s relevant Trade Marks.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in the disputed domain name:

(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent (as an individual, business, or other organisation) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.

The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain names or to use the Trade Marks. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names, and the burden is thus on the Respondent to produce evidence to rebut this presumption.

The Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services.

To the contrary, the disputed domain names have been used in connection with the Websites, to obtain pay-per-click revenue via sponsored links, including to websites providing goods or services similar to those provided by the Complainant under the Trade Marks.

There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names.

There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.

In addition, the Panel notes the nature of the disputed domain names, which carry a risk of implied association (see WIPO Overview 3.0, section 2.5.1).

In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names.

C. Registered and Used in Bad Faith

In light of the manner of the use of the disputed domain names highlighted in Section B. above, and incorporating the facts and findings made above, the Panel finds that the requisite element of bad faith has been made out under paragraph 4(b)(iv) of the Policy.

For all the foregoing reasons, the Panel concludes that the disputed domain names have been registered and are being used in bad faith.

7. Decision

Insofar as the Panel has declined to accept consolidation of the disputed domain name <usairwsys.com>, the complaint is denied as to that domain name but without prejudice to the Complainant’s right to file a complaint under the Policy with respect to that domain name.

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 <asairways.com>, <eusairways.com>, <hsairways.com>, <isairways.com>, <lusairways.com>, <ufairways.com>, <uisair.com>, <upsairways.com>, <usaiirways.com>, <usairawys.com>, <usairbarkleycard.com>, <usairbizcard.com>, <usairl.com>, <usairsays.com>, <usairwauys.com>, <usairwayws.com> and <usairyways.com> be transferred to the Complainant.

Sebastian M.W. Hughes
Sole Panelist
Dated: July 12, 2021