ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
Complainant is EVA Airways Corporation, an international airline based in Taipei, Taiwan. It is the holder of trademark rights, including a United States trademark registration, in the mark "EVA AIR." It requests the transfer to it of the mark evaair.com. Respondent is one Gary Chiang, the administrative, technical and billing contact for Xillion, the current registrant of evaair.com. The whois database lists a United States address for Mr. Chiang.
2. Procedural History
EVA Airways filed its complaint through eResolution's web site on November 9, 2000, and filed hard copies received by eResolution the following day. The Clerk's Office forwarded the complaint to Mr. Chiang on November 16. All notifications sent to Mr. Chiang by registered mail were returned, as "address unknown." Mail system delivery reports, however, indicate that notifications were successfully delivered to Mr. Chiang's email address. Mr. Chiang did not submit a response.
3. Factual Background
The web site maintained by Xillion at www.evaair.com appears to be an advertiser-supported portal, predominantly in Chinese, linking the user to a variety of sites in the field of air transportation and travel agency services. The main frame of the home page (in English) includes a panoramic picture of an urban riverfront and the slogan "The Goddess of flying wings," together with the name EVAAIR.COM and a banner advertisement. Other pages on the site (in Chinese) include a variety of links to airlines and travel agencies. The airlines appear predominantly to be based in Taiwan; all of the travel agencies appear to be located in Taiwan. The home page includes no warning that it is not affiliated with the Taiwan-based EVA Airways.
The www.evaair.com site does include a page linking to information about six other registered domain names incorporating, or closely similar to, the EVA AIR mark. Three of those names do not resolve to an active web page; a fourth redirects to the home page of NameZero, a domain name registrar. The fifth is owned by Complainant. The sixth resolves to an active web page, in Norwegian, that appears to provide travel-related services; that site is registered to Brynjar Steinsoey, of BS Domainname Trading.
4. Parties' Contentions
EVA Airways's bare-bones complaint asserts that Mr. Chiang has no right or legitimate interest in the EVA Air name. The evaair.com domain name, the complaint asserts, is not being used for a legitimate or noncommercial purpose, and is being used in such a manner as to create consumer confusion. As noted above, Mr. Chiang did not respond.
5. Discussion and Findings
Under the Uniform Domain Name Dispute Resolution Policy, a domain name may be transferred only on a showing that
(i) [the] domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) [respondent has] no rights or legitimate interests in respect of the domain name; and
(iii) [the] domain name has been registered and is being used in bad faith.
Policy, para. 4(a). That evaair.com is "identical or confusingly similar to" the EVA AIR trademark is not open to reasonable dispute.
It does not seem that Xillion has "rights or legitimate interests in respect of the domain name." There is no reason to believe that Xillion or Mr. Chiang has ever been commonly known by the domain name, in the words of para. 4(c)(2) of the Policy. Xillion's use does not appear to be in connection with a bona fide offering of goods or services, in the words of para. 4(c)(1). Xillion's display of two pages of links to airlines and travel agencies can be said to be an offering of portal or directory services, but in the context of this case it cannot be said to be bona fide. The web site's home page, incorporating a slogan that could plausibly be that of an airline, leaves the impression that it is affiliated with EVA Airways. The content of the web site is closely related to EVA Airways' business, and the web site's target audience (Chinese-speaking Web users seeking Taiwanese travel agencies and airlines) is identical to EVA Airways' primary market. The inference is strong, and unrebutted on this record, that Xillion - rather than seeking to build a bona fide business of its own - is simply seeking to collect advertising dollars by creating confusion as to the sponsorship of its site. Finally, Xillion's use of the domain name is not noncommercial, as required by para. 4(c)(3) of the Policy, nor does it seem that Xillion has rights or legitimate interests in the domain name in a way not listed in paragraph 4.
The next issue is whether Xillion registered the domain name, and is using it, in bad faith. Paragraph 4(b)(iv) of the Uniform Domain Name Dispute Resolution Policy recites that where a domain name registrant, "by using the domain name, [has] intentionally attempted to attract, for commercial gain, Internet users to [the] 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 [the] web site," that circumstance "shall be evidence of the registration and use of a domain name in bad faith." For the reasons set out in the preceding paragraph, I find that that circumstance is present in this case. Accordingly, there is evidence of registration and use in bad faith; because Mr. Chiang did not file a response, that evidence is unrebutted.
It is appropriate to spend a moment discussing Xillion's page containing information about registrants of similar domain names. Xillion may have meant by displaying this page to suggest that the EVA AIR mark is weak, and commonly used by persons other than EVA Airways, so that Xillion's own use should not be considered to be confusing or in bad faith. If so, however, its effort is unsuccessful. The mere fact that various other individuals have registered names incorporating variants of the mark, in the absence of any evidence of actual use of those names, does not tell us whether those individuals intend to use the names for bona fide purposes or for uses that would themselves reflect bad faith. The only domain name listed by Xillion that resolves to an active web site, besides Complainant's, is Mr. Steinsoey's site. Yet the existence of a web site exclusively in Norwegian with a similar domain name is not especially relevant to the question of whether Xillion's web site, directed to Taiwanese users, seeks to confuse customers of the Taiwan-based EVA Airlines. Finally, although Xillion's page contains an inconspicuous link to EVA Airways' actual web site, it does not, under the circumstances, adequately warn visitors that Xillion's web site is not affiliated with EVA Airways.
Accordingly, I direct that the evaair.com domain name be transferred to Complainant.
Ann Arbor, Michigan
Tuesday, December 26, 2000
(s) Jonathan Weinberg