The Complainant is Société Air France, Roissy CDG Cedex, France, represented by MEYER & Partenaires, France.
The Respondent is Alvaro Collazo, Tarariras, Colonia, Uruguay.
2. The Domain Name and Registrar
The disputed domain name <airgrance.com> is registered with iHoldings.com
Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 16, 2004. On June 17, 2004, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On June 24, 2004, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 29, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was July 19, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 20, 2004.
The Center appointed Jens Schovsbo as the sole panelist
in this matter on July 29, 2004. 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, Société Air France, is one of the world’s major airline companies and can trace its origins back to 1933.
It is an airline passenger and freight carrier company, established under the laws of France, operating internationally: 1800 daily flights to 191 cities in 80 countries. 43,7 millions of passengers flew on flights operated by Société Air France during the year 2003/2004.
Société Air France has developed a wide reputation through television, radio, printed media, online advertising, promotions and incentive programs.
Société Air France is operating an international web portal under the Uniform Resource Locator “www.airfrance.com”.
AIR FRANCE is the trade name of the Complainant, used in commerce since 1933.
The Complainant is the registered owner of a large number of trademarks consisting or including the words “Air France” in a great majority of countries in the world.
Société Air France is the registered owner of trademarks in France and the United States:
“AIR FRANCE”, French nominative trademark n° 1, 703, 113 of October 31, 1991, for all classes of 1957 Nice Agreement, renewed on September 27, 2001;
“AIR FRANCE” French nominative trademark n° 99, 811, 269 of October 6, 1999, in 32 classes of Nice Agreement and especially in class 38 for Internet services;
“AIR FRANCE” nominative trademark registered in the United States of America on August 2nd, 1955 under n° 0610072, live;
“AIR FRANCE”, Uruguayan nominative trademark n°235065 registered on December 27, 1968 for class 12 of 1957 Nice Agreement, last renewed on November 23, 2000.
On Respondent’s website – “www.airgrance.com” appears the following information: “This domain is registered at DotRegistrar.com by a customer and parked temporarily until the owner establishes a permanent site. To contact the owner of the domain <airgrance.com>, please email [the e-mail address of the Respondent]”.
Several hyperlinks are displayed consisting of results related to the domain
name <airgrance.com>, listed by topics like “Paris
travel”, “travel to France” and advertising (including “pop-up”
advertising). By clicking on these hyperlinks, users are directed to another
page with hyperlinks pointing to commercial websites, for products or services
offered by competing third-party businesses.
5. Parties’ Contentions
A. Complainant
The Complainant claims that its trademark AIR FRANCE is confusingly similar
to the domain name <airgrance.com>. The domain name is thus composed of
the same 9 letters as the well-known trademark AIR FRANCE, except for the fourth
letter of the dispute domain name - “G” -, that corresponds to “F”
in Complainant’s trademark. “Airgrance” does not mean anything,
neither in Spanish nor in English, nor in French. According to the Complainant
the only difference between the disputed domain name <airgrance.com> and
the Complainant’s trademark AIR FRANCE is a misspelling, consisting of
the substitution of the letter “F” for the letter “G”.
The letter “F” is beside the letter “G” on a computer
keyboard: the misspelling is made easier because of this nearness. On this basis
the Complainant contends that the Respondent’s behaviour falls under the
definition of so called “typosquatting”, i.e. “taking advantage
of common misspelling made by Internet users who are looking for a particular
provider of goods or services, in order to obtain some benefit there from”.
The Complainant refers to Expedia, Inc. v. Alvaro Collazo, WIPO
Case No. D2003-0716, where the Respondent in the present case was found
to be engaged in typosquatting-activities.
According to the Complainant the Respondent should be considered as having no rights or legitimate interests in respect of the domain name <airgrance.com>. To the Complainant’s best knowledge, the Respondent is not and has never been commonly known under the wording “airgrance”. Furthermore, the Respondent is not related, in any way, to the Complainant’s business: he is not one of its agents and does not carry out any activity for, or has any business with it. No licence or authorization have been granted to the Respondent to make any use, nor apply for registration of the domain name by Société Air France.
Finally, the Complainant contends that the Respondent has registered and is
using the domain name <airgrance.com>in bad faith. In this regard
the Complainant maintains that it has previously demonstrated the strong reputation
and the widely known character of its mark AIR FRANCE throughout the world for
a long time. In this regard the Complainant refers to Arthur Guinness Son
& Co. (Dublin) Ltd. v. Steel Vertigogo, WIPO
Case No. D2001-0020 regarding <guinessbeer.com>. According to that
decision the notoriety of a Complainant’s trademark creates a prima
facie presumption that the Respondent registered the domain name “for
the purpose of selling it to Complainant or one of its competitors, or that
it was intented to be used in some way to attract for commercial gain users
to the website by creating a likelihood of confusion with Complainant’s
mark”.
According to the Complainant it is difficult to imagine
any good and fair reason for the Respondent to register the domain name <airgrance.com>taking into account the past activities of the Respondent. It is thus impossible
that the Respondent could have been unaware of the well-known trademark “AIR
FRANCE”. The domain name was thus registered after the Respondent had
been involved in litigation with Société Air France, in connection with the
domain name <arifrance.com>, Société Air France v. Alvaro Collazo,
WIPO Case No. D2003-0417. In that case
the Panel found that “... the fact that the Respondent has registered
a domain name which only differs from the well-known mark AIR FRANCE by a typographical
misspelling in itself strongly indicates that the domain name is registered
in bad faith.”According to the Complainantthe Respondent
has thus registered the domain name precisely because he knew of the well-known
character of the trademark “AIR FRANCE”, for the sole purpose of
generating a commercial gain by intentionally misleading divert users away from
Complainant’s international web portal and profit of Internet traffic
from Internet users seeking Société Air France’s official site “www.airfrance.com”.
As evidence of the bad faith of the Respondentthe Complainant refers to the fact that the Respondent has been involved – as Respondent – in number of UDRP-cases involving cybersquatting:
3. Bank of America v. Alvaro Collazo,NAF Claim number FA0403000248681, <bankofamerics.com> <bankofamericq.com> <bankofamerixa.com> <bankofameruca.com> <vbankofamerica.com>
4. The Neiman Marcus Group, Inc. v. Alvaro Collazo, NAF Claim number FA0403000248954,<wwwbergdorfgoodman.com>
In all these cases the disputed domain names were transferred. As evidence of the Respondent’s bad faith the Complainant also refers to a message allegedly posted by the Respondent on January 28, 2003, (point 89):
“My job esta’ fregona up domain nomes like Alphadrome/POLO/TTT to make many dollars from lazy village people quien forget to renew their domains. I want 1200,00$ + to sell a’ nome. Que nome! Mucho-mucho dinero!$$$. Is true I was involved in la Guerra/war with the designer Polo. I usar this Robot1968 site to find more victims and buy especial domains… Alvaro Collazo, Montevideo Uruguay, [the e-mail address of the Respondent of the present case]”.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant shall prove that it has rights in the trademark AIR FRANCE and that the domain name <airgrance.com> is identical or confusingly similar to that trademark.
In the present case the Complainant has proved to
be the owner of the trademark AIR FRANCE, see Section 4 above. Furthermore,
it has been held in previous WIPO decisions that the Complainant “has
used the mark extensively and the mark has acquired considerable fame and recognition”,
see Société Air France v. Alvaro Collazo, WIPO
Case No. D2003-0417 <arifrance.com>, Société Air France v. KitchKulture,
WIPO Case No. D2002-0158 <my-airfrance.com>
and that the AIR FRANCE “is a famous trademark”- see Société
Air France v. Van Wijk & Mesker Holding BV, WIPO
Case No. D2002-0028 <airfrance-delta.com> and <airfrance-delta.net>.
The question which needs to be discussed is whether the domain name <airgrance.com> is confusingly similar to the trademark AIR FRANCE.
The domain name is composed of the same 9 letters as the well-known AIR FRANCE trademark, except for the fourth letter of the dispute domain name - “G” - which corresponds to the letter “F” in Complainant’s trademark. It is the view of the Panel that this slight typographical distinction does not distinguish the domain name sufficiently from the well known trademark AIR FRANCE.
The Panel finds it to be of importance that the difference
between the domain name and the trademark has the character of a misspelling
only. Furthermore, this misspelling is easily made due to the position of the
letters “F” and “G” next to each other on a normal keyboard.
It is the view of the Panel that the Respondent has deliberately taken advantage
of a common misspelling made by Internet users. The registration of <airgrance.com>
is therefore an example of “cybersquatting”. The Panel considers
this to be of importance also regarding the question of similarity of the domain
name and the trademark and refers to Société Air France v. Alvaro Collazo,
WIPO Case No. D2003-0417 “the [UDRP]
practice indicates that domain names that are simply based on misspellings of
trademarks and service marks often are regarded as confusingly similar.”
On this basis the Panel concludes that the first condition under the Policy, paragraph 4(a)(i) is satisfied
B. Rights or Legitimate Interests
To the Complainant’s best knowledge, the Respondent is not and has never been commonly known under the wording AIRGRANCE. Furthermore, the Respondents is not related in any way to the Complainant’s business: he is not one of its agents and does not carry out any activity for, or has any business with it. No licence or authorization have been granted to Respondent to make any use, nor apply for registration of the domain name by Société Air France.
Based on the facts of the case the Panel has no reason to doubt that this information is correct.
The Panel thus concludes, that the Complainant has proved the second requirement of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
According to paragraph 4(b) of the Policy, the following circumstances shall be evidence of registration and use in bad faith:
“(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 website 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.”
The Panel finds that the fact that the Respondent has registered a domain name
which only differs from the well known mark AIR FRANCE by a typographical misspelling
in itself strongly indicates that the domain name is registered in bad faith.
The Panel furthermore finds that the Complainant has proved that the Respondent
is conducting a typosquatting practice, see above, 6A. The Respondent has thus
registered the domain name <airgrance.com> only “… to take
advantage of common misspelling made by Internet users who are looking for a
particular provider of goods or services, in order to obtain some benefit therefrom”
(Expedia Inc. v. Alvaro Collazo, WIPO
Case No. D2003-0716). The Panel finds this activity to be evidence of Registration
and Use in Bad Faith as it is explained in paragraph 4(b)(iv) of the Policy.
The Panel finds this conclusion to be strongly supported by the fact that the Respondent has been involved in a number of UDRP cases involving cybersquatting, see Section 5 above. The Panel finds that these cases together with the present case amount a pattern of cybersquatting activity. This pattern of bad faith-registration is also made evident by the message posted by the Respondent on the Internet, see above Section 5. The content of the Complaint has not been contested by the Respondent and the Panel has no reason not to consider it to be true.
The Panel thus finds that the Complainant has proved
the third and last requirement of paragraph 4(a)(iii) of the Policy.
7. Decision
For all the foregoing reasons, in accordance with
paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the
domain name, <airgrance.com> be transferred to the Complainant.
Jens Schovsbo Sole Panelist
Date: August 3, 2004
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