The Complainant is Société AIR FRANCE of Paris, France, represented by MEYER & Partenaires, France.
The Respondent is Bing G Glu of China.
2. The Domain Names and Registrar
The disputed domain names <aiirfrance.com>, <airfraance.com>, <airrance.com>
and <airrfance.com> are registered with Communigal Communications Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 30, 2006 by email and by hardcopy on July 5,2006. On July 3, 2006, the Center transmitted by email to Communigal Communications Ltd. a request for registrar verification in connection with the domain names at issue. On July 9, 2006, Communigal Communications Ltd. 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 July 21, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 10, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 14, 2006.
The Center appointed Christophe Imhoos as the sole
panelist in this matter on August 22, 2006. 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 introduces itself as one of the world’s major airline companies, tracing its origins back to 1933.
The Complainant is the registered owner of a large number of trademarks consisting or including the wording “AIR FRANCE” in a great majority of countries in the world. It is, for instance, the registered owner of trademarks in France and the United States of America, and also in China of the following:
- “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 (Annex G1 to the Complaint);
- “AIR FRANCE” French nominative trademark n° 99, 811, 269 of September 6, 1999 in 32 classes of Nice Agreement and especially in class 38 for Internet services (Annex G2 to the Complaint);
- “AIR FRANCE” nominative trademark registered in the United States of America on August 2nd, 1955 under n° 0610072, renewed on August 2, 1995, live (Annex G3 to the Complaint);
- “AIR FRANCE” nominative trademark n°538658 registered on December 29, 1990, and last renewed on December 29, 2000 (Annex G4 to the Complaint).
The Complainant is also operating an international web portal at “www.airtrance.com” (Annex C to the Complaint). It registered several generic and Country Code Top Level Domain names consisting of or incorporating the trademark “AIR FRANCE”. For instance, the domain names <airfrance.com.cn> and <airfrance.cn> have been registered by the Complainant since March 18, 2000, and March 17, 2003. These domain names activate the Complainant’s Greater China Asian webportal (Annex D to the Complaint).
When information as to the existence of the domain
names in dispute came to its knowledge, the Complainant tried to settle the
matter amicably by sending a cease and desist letter to the Respondent on April
27, 2006 (Annex E to the Complaint) asking for the transfer of ownership of
said domain names to its benefit. The Respondent did not answer, despite a reminder
sent by the Complainant on May 19, 2006 (Annex F to the Complaint).
5. Parties’ Contentions
A. Complainant
The Complainants’ arguments are the following:
(i) The domain names are confusingly similar to the trademark “AIR FRANCE” in which the Complainant has rights.
The domain names in question contain minor misspellings of Complainant’s trademark. The letters inversion/suppression/additions in the disputed domain names do not eliminate any risk of confusion with the Complainant’s trademark.
The Respondent’s behaviour falls under the definition of typosquatting:
“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 therefrom” (Expedia, Inc. v. Alvaro Collazo, WIPO
Case No. D2003-0716; InfoSpace, Inc. v. Double Down Magazine, WIPO
Case No. D2000-1474).
The risk of confusion is still reinforced by the hyperlinks forwarding to websites operating in the scope of travel and tourism to which the disputed domain names are pointing (Annex H to the Complaint).
(ii) The Respondent has no rights or legitimate interests in respect of the domain names.
The Respondent is not related in any way to the Complainant’s business. It is not one of its agents nor does it carry out any activity for, or has any business with it.
The Respondent is not currently and has never been known under the wording AIR FRANCE.
No licence or authorization has been granted to the Respondent to make any use, or to apply for registration of the domain names <aiirfrance.com>, <airfraance.com>, <airrance.com> and <airrfance.com> by the Complainant.
In similar circumstances, Administrative Panels held that the Respondent had
neither rights nor legitimate interests in issuing domain names (e.g. Guerlain
SA v. Peikang, WIPO Case No. D2000-0055).
The disputed domain names have been registered by the Respondent in order to take advantage of the Complainant’s well-known trademark to confuse and divert Internet users to competing websites in the field of tourism and travel through a “pay per click” domain parking solution (Annex H to the Complaint). Such use is not a bona fide offering of goods or services under Paragraph 4(c)(i) of the Policy, or a non-commercial or fair use under Paragraph 4(c)(iii) of said Policy.
As a matter of fact, the Respondent has not engaged in any action that shows it has rights or legitimate interests in the disputed domain names.
(iii) The domain name was registered and is being used in bad faith.
It is difficult to imagine that the Respondent could have ignored the well-known trademark “AIR FRANCE” at the time it applied for registration of the confusingly similar domain names. The Complainant has previously demonstrated the strong reputation and the widely known character of its mark “AIR FRANCE” throughout the world for a long time.
It is also difficult to imagine any good faith for which the Respondent might have registered four domain names which obviously constitute typosquatting of the well-known trademark “AIR FRANCE”.
The Respondent uses the disputed domain names to divert Internet users to parking webpages on which several hyperlinks are displayed, many of them consisting of results in the field of tourism and travel (Annex H to the Complaint).
By clicking on these hyperlinks, users are directed to competing third-party commercial websites (Annex I to the Complaint). These hyperlinks generate revenue to the benefit of the Respondent through a “pay per click” domain parking solution. Considering that, it is obvious that the Respondent is intending to realize material benefits by diluting the fame and renown of the Complainant’s trademarks.
The Respondent is obviously not making any legitimate non-commercial or fair use of the disputed domain names because such use could mislead consumers by offering competing services, without having acquired any licence or permission from the Complainant, which is the legitimate owner of the trademark “AIR FRANCE”. Such a use of the domain in disputes has to be considered as unfair competition.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth three requirements, which have to be met for the Administrative Panel to order the transfer of the disputed domain name to the Complainant. Those requirements are that:
(i) Respondent’s 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) Respondent’s domain name has been registered and is being used in bad faith.
The Complainant must prove in the administrative proceeding that each of the aforesaid three elements is present so as to warrant relief, according to Paragraph 4(a) of the Policy.
The Panel has to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable, pursuant to Paragraph 15(a) of said Rules.
In accordance with Paragraph 14(b) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint.
A. Identical or Confusingly Similar
The Complainant has established its rights in the trademark “AIR FRANCE” with numerous registrations for such a name, in particular in France, the United States of America and, especially, in China where the Respondent is domiciled (Annexes G to the Complaint).
The Complainant’s trademark “AIR FRANCE” is obviously confusingly similar to the domain names <aiirfrance.com>, <airfraance.com>, <airrance.com> and <airrfance.com>.
For the above reasons, the Panel finds that the disputed domain names are confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances, if found by the Panel to be proved based on its evaluation of all evidence submitted, shall demonstrate rights to or legitimate interests in the domain name in dispute. Those circumstances are described as follows:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or 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 Respondent, in not responding to the Complaint, has failed to invoke any
of the circumstances, which could demonstrate, pursuant to Paragraph 4(c) of
the Policy, any rights to and/or legitimate interests in the domain name in
dispute. This entitles the Panel to draw any such inferences from such default
as it considers appropriate pursuant to Paragraph 14 (b) of the Rules (see e.g.
Talk City, Inc. v. Michael Robertson, WIPO
Case No. D2000-0009 or Isabelle Adjani .v. Second Orbit Communications,
Inc., WIPO Case No. D2000-0867). The
Complainant should nevertheless make out an initial prima facie case
that the Respondent lacks rights or legitimate interests (see Croatia Airlines
d.d. v. Modern Empire Internet Ltd., WIPO
Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO
Case No. D2004-0110).
The trademark “AIR FRANCE” has been known for a significant period of time and the Complainant has not granted any license or otherwise permitted the Respondent to use its trademark or to apply for any domain names incorporating the said trademark. Moreover, the Respondent is not known by the domain names at stake.
Under these circumstances and absent evidence to the contrary, the Panel is unable to find any evidence that would tend to establish that the Respondent has rights or legitimate interests in respect of the disputed domain names.
Furthermore, as pointed out by the Complainant in its Complaint, the “pay per click” domain parking solution adopted by the Respondent (Annex H to the Complaint) is not a bona fide offering of goods or services under Paragraph 4(c)(i) of the Policy or a non-commercial or fair use under Paragraph 4(c)(iii) of the Policy.
For the above reasons , the Panel finds that the Respondent does not have rights or legitimate interest with respect to the domain names.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive
list of circumstances that evidence registration and use of a domain name in
bad faith. Any one of the following behaviors is sufficient to support a finding
of 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.
As already mentioned, the Respondent did not file any response to the Complaint, failing thereby to invoke any circumstance which could demonstrate its good faith in the registration or use of the domain names in issue.
Nevertheless, the Panel still has the responsibility of determining which of
the Complainant’s assertions are established as facts, and whether the
conclusions asserted by the Complainant can be drawn from the established facts
(see Harvey Norman Retailing Pty Ltd v. Oxford-University, WIPO
Case No. D2000-0944).
As pointed out by the Complainant in its Complaint, the Respondent could not ignore the Complainant’s trademark registrations at the time it set up the domain names in dispute. Bad faith registration is established in the opinion of the Panel as it is clear from the disputed domain names that the Respondent had actual knowledge of the Complainant’s trademark, known worldwide, when it registered them (Annexes H and I).
The Complainant has submitted a prima facie case that the Respondent uses the disputed domain names in order to divert Internet users to parking webpages on which several hyperlinks are displayed many of which consisting of results in the field of tourism and travel (Annex H to the Complaint); by clicking on these hyperlinks, users are directed to competing third-party commercial websites (Annex I to the Complaint) whose said hyperlinks generate revenue to the benefit of the Respondent through a “pay per click” domain parking solution.
Such a behavior, in the Panel’s view, has, in the circumstances, to be
considered as bad faith registration and use pursuant to Paragraph 4(b)(iv)
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 names <aiirfrance.com>, <airfraance.com>, <airrance.com> and <airrfance.com> be transferred to the Complainant.
Christophe Imhoos
Sole Panelist
Dated: September 5, 2006
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