The Complainant is Société Air France, Paris, France, represented by MEYER & Partenaires, Strasbourg, France.
The Respondent is Air France E-ticket, Modesto, California, United States of
America.
2. The Domain Name and Registrar
The disputed domain name <airfrance-us.org> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 4, 2005. On November 7, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On November 8, 2005, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 November 14, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was December 4, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 6, 2005.
The Center appointed Frank R. Schoneveld as the sole
panelist in this matter on December 21, 2005. 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 is the trade name of the Complainant, used in commerce since 1933. It is the registered owner of a large number of trademarks consisting of or including the wording “AIR FRANCE” in a great number of countries in the world. Complainant operates an international web portal at “www.airfrance.com”. It also has registered several generic and country code top-level domain names consisting of or incorporating the trademark AIR FRANCE.
For instance, the domain name <airfrance.us> has been registered by Complainant since April 24, 2002. This domain name activates Complainant’s local website for the United States. The Complainant is also the registrant of the domain names <airfranceus.com> and <airfranceusa.com>.
Complainant is the registered owner of trademarks in France and the United States where the Respondent, Airfrance E-Ticket is supposed to be established. These trademarks include:
- AIR FRANCE, French nominative trademark n° 1, 703,113 of October 31, 1991 for all classes of 1957 Nice agreement, renewed on September 24, 2001;
- AIR FRANCE, French nominative trademark n° 99, 811,269 of September 6, 1999 in 32 classes of the Nice Agreement and especially in class 38 for Internet services;
- AIR FRANCE, nominative trademark registered in the United States of America on August 2, 1955, under n° 0610072, currently under renewal.
The Respondent, apparently located in California, United States registered the disputed domain name <airfrance-us.org> on August 12, 2005. Respondent is the registrant and the administrative contact for the disputed domain name.
The Respondent’s telephone number as mentioned in the Registrar’s Whois is that of a person named “S Ybarra”, also located in Modesto, California in the United States. There is, nevertheless, no other proof attesting that Airfrance E-Ticket and S Ybarra are connected.
The website at the disputed domain name diverts Internet
users to a parking webpage provided by MSN online messenger service. By clicking
on the hyperlink “Get your own personal address”, Internet users
are directed to an MSN Premium services webpage where they can buy an MSN address.
This activation generates traffic to the benefit of MSN and might generate revenue
to the benefit of the Respondent.
5. Parties’ Contentions
A. Complainant
The Complainant has filed its complaint against the Respondent alleging abusive registration and use of the domain name <airfrance-us.org> and seeks the transfer of this domain name.
Complainant asserts it is difficult to imagine any good purpose or legitimate interests of the Respondent in registering and using the domain name <airfrance-us.org>.
The Complainant’s trademark AIR FRANCE is said to be well and widely known throughout the world and easily recognizable as such. It is asserted that several courts of justice and administrative panels have already recognized the well-known character of the trademark AIR FRANCE. Complainant argues that it should be indisputably considered that the trademark AIR FRANCE owned by the Complainant is not only registered and used in commerce in many countries of the world, but is also well-known in the sense of Article 6 bis of the Paris Union Convention.
In the present case, the Complainant claims that the domain name <airfrance-us.org>
is confusingly similar to its trademark AIR FRANCE. It submits that it is the
law under the UDRP that the inclusion of a top level domain extension has to
be ignored in comparing a trademark to a domain name (e.g. Koninklijke Philips
Electronics N.V. v. Manageware, WIPO Case
No. D2001-0796). It asserts that the mere addition of the suffix “us”
to the well-known trademark AIR FRANCE is not enough to grant distinctiveness
to the domain name <airfrance-us.org>, arguing that, on the contrary,
this addition is undoubtedly designed to take advantage of the confusion likely
made by Internet users, particularly American ones, when trying to access Complainant’s
website in the United States.
It is said the risk of confusion is also demonstrated by a search on the Internet through the Web search engine Google for the wording ‘airfrance-us’ with all results being exclusively related to the Complainant. As a consequence, the Complainant claims that the domain name <airfrance-us.org> is confusingly similar to its trademark AIR FRANCE.
Secondly, the Complainant alleges the Respondent should be considered as having no rights or legitimate interests in respect of the domain name <airfrance-us.org>, stating that there is no business named Air France E-Ticket located at the Respondent’s address in Modesto, California, United States.
Complainant claims that the domain name <airfrance-us.org> has been registered by Respondent to take advantage of the Complainant’s well-known trademark to confuse and divert Internet users, and as a matter of fact, the Respondent has not engaged in any action that shows he has any rights or legitimate interests in the disputed domain name. The Complainant concludes therefore, that the Respondent should be considered as having no rights or legitimate interests in respect of the domain name <airfrance-us.org>.
Complainant says it is difficult to imagine that the Respondent could have been unaware of the well-known trademark AIR FRANCE at the time it applied for registration of the confusingly similar domain name <airfrance-us.org>, alleging that the Respondent is illegally using the name “Air France” in combination with the wording “E-Ticket” in the <airfrance-us.org> WHOIS information. Complainant submits that this element alone is sufficient to prove that the Respondent was aware of the Complainant at the time it registered the infringing domain name.
The Complainant further claims that the Respondent could not have been unaware of Complainant’s international reputation at the time it registered the disputed domain name, and in registering the disputed domain name, there is no doubt that Respondent wanted to refer to the Complainant.
Complainant submits the Respondent registered the disputed domain name for the sole purpose of taking advantage of Internet traffic by Internet users seeking the Complainant’s products and services on the Internet.
Complainant contends that the Respondent’s use of the domain name <airfrance-us.org> constitutes bad faith use, and the above combination of facts shows the bad faith registration of the domain name <airfrance-us.org> by the Respondent.
Complainant also contends that any argument saying that the activity at the
website of the disputed domain name was not controlled by the Respondent, but
due to a parking program or any other affiliation program, is not admissible.
Complainant submits it is now established that “even if such use commonly
occurs on so-called ‘parking’ pages, Respondent has a responsibility
for the content Respondent allows to be posted at the site.” (e.g. Hewlett
Packard Company v. Alvaro Collazo, National Arbitration Forum (NAF) Claim
n° FA144628; Société Air France v. Alvaro Collazo, WIPO
Case No. D2003-0417).
Finally, the Complainant says the Respondent is not making any legitimate non-commercial or fair use of the disputed domain, and for all the foregoing reasons, the Respondent has engaged in bad faith registration and use of the domain name <airfrance-us.org>.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
The Rules at paragraph 5(e) provide that:
“If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint”.
There being no response submitted by the Respondent, and no exceptional circumstances, the Panel proceeds to decide the dispute based upon the Complaint.
A. Identical or Confusingly Similar
Clearly, the Complainant’s trademark AIR FRANCE forms the most significant, and distinctive, part of the disputed domain name. The other letters of the domain name might be taken to be an abbreviation for the United States, or the collective pronoun in English “us”, or as the top level domain “.us”. In any event, use of the dash followed by the letters “us”, emphasizes the Complainant’s trademark incorporated into the domain name.
In these circumstances, an Internet user could easily be confused by the similarity between the Complainant’s trademark and the disputed domain name, mistakenly concluding that the domain name is so similar as to be related in some way to the trademark. The Panel therefore decides that the domain name is confusingly similar to the trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
In the absence of any other evidence, as submitted by the Complainant, the Panel accepts that:
(a) The Respondent is not related in any way to Complainant’s business. It is not one of its agents and does not carry out any activity for, or have any business with it;
(b) The Respondent is not currently and has never been known under the wording “AIR FRANCE” or under the combination of this trademark with the suffix “E-TICKET” or “US”; and
(c) No licence or authorization has been granted by Complainant to Respondent to make any use of, nor apply for registration of the domain name <airfrance-us.org>.
There is no evidence the Respondent has any rights or legitimate interests in respect of the domain name. The Complainant claims, and the Panel accepts that there has never been any business relationship between the Complainant and the Respondent which might entitle the Respondent to claim some right or interest in the trademark partly making up the disputed domain name.
Given the registration of AIR FRANCE as a trademark in the United States and the reputation of the Complainant as a global airline, the US-located Respondent can be assumed to know of the Complainant and its rights in the United States in that trademark. Despite the Complainant’s claim that the Respondent is taking advantage of this trademark to confuse and divert Internet users, the Respondent gives no explanation nor does it make any reply.
The Respondent fails to respond to the Complainant’s assertions and proof provided that no business exists under the name of, or at the address given by, the Respondent. Nor is there any rebuttal to the suggestion that the telephone number of the Respondent had no connection with the unknown business name of the Respondent.
In circumstances where the Respondent fails to respond to the evidence and serious allegations of the Complainant, and in the absence of any other evidence or reasonable explanation for these allegations, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b)(iv) of the Policy provides that evidence of registration and use in bad faith can be established if there are circumstances present that, by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the website.
The Complainant not only has rights in the trademark AIR FRANCE, but is also the registrant of the domain names <airfranceus.com> and <airfranceusa.com>. The Complainant shows that a search engine search for “AIRFRANCE-US” will in the first 50 hits, almost always direct the user to the Complainant’s website “www.airfrance.us.” Given this circumstance and the similarity with the trademark and the Complainant’s other similarly named domains, the Panel finds that the Respondent’s website does attempt to attract Internet users by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the website at the disputed domain name. Also, in the absence of any submission from the Respondent, or other reasonable explanation, it is difficult not to come to the conclusion and the Panel does conclude, that the Respondent has done so intentionally.
Another issue is whether the Respondent has attempted to attract Internet users for commercial gain. The hyperlinks on the webpage divert the user to an MSN Premium services page, which invites the purchase of this service. The Complainant claims that the diversion to the MSN Services page generates traffic to the benefit of MSN and might generate revenue to the benefit of the Respondent.
The use of the disputed domain name website to offer services for reward, whether the reward be directly accruing to the Respondent or some other person, suggests that the Respondent is likely to obtain some commercial gain. In the absence of any contrary assertion from the Respondent, or other reasonable explanation, the Panel finds that the above mentioned attraction of Internet users is for commercial gain.
In view of all the above circumstances and findings, the Panel concludes that
the disputed domain name has been registered and is being used in bad faith.
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 <airfrance-us.org> be transferred to the Complainant.
Frank R. Schoneveld
Sole Panelist
Date: December 23, 2005
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