Complainant is Société Air France, of Roissy CDG Cedex, France, France, represented by MEYER & Partenaires, France.
Respondent is FP Transitions Pty Ltd, Tony Dickin, of, McMahons Point, Australia.
2. The Domain Name and Registrar
The disputed domain name <airfranceonline.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 6, 2007. On July 6, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On July 09, 2007, eNom transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on July 16, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 5, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 8, 2007.
In the same date, Respondent sent an e-mail message to the Center, claiming that there was no bad faith on his part in registering the disputed domain name. Considering that said communication arrived after the deadline for the filling of a Response, the Center informed, in accordance to UDRP Rules, paragraph 10(d), that it would be at the discretion of the panel to consider it.
The Center appointed Gabriel F. Leonardos as the sole panelist in this matter on August 16, 2007. 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
Complainant it is one of the world’s major airline companies, tracing its origins back to 1933.
Respondent is located in Australia.
Complainant operates domestic and international scheduled passenger and cargo services to 185 destinations in 83 countries around the world. Its main bases are Orly Airport and Charles de Gaulle International Airport, both in Paris.
Complainant manages an international web portal at “http://www.airfrance.com” and it also registered several generic and country code top-level domain names consisting of or incorporating the trademark AIR FRANCE.
In the same way, Complainant is the registered owner of a large number of trademarks consisting or including the wording “AIR FRANCE” in many countries, as indicated:
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 September 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, renewed on August 2, 1995;
AIR FRANCE International trademark designating Australia n°828334 of October 10, 2003.
Complainant also is the registered owner of trademarks in France, in the United States and also in Australia, where Respondent is established.
5. Parties’ Contentions
A. Complainant
In the present case, Complainant claims that the domain name <airfranceonline.com> is confusingly similar to its trademark AIR FRANCE, not only because the trademark AIR FRANCE is entirely reproduced in the disputed domain name, but also because the domain name combines Complainant’s famous trademark with the suffix “online”. Complainant considers that the wording “online” is commonly used in relation with services on the internet, and with airline company business, such as the online reservation services, provided by Complainant for its customers through many of its websites.
Complainant states that the combination of the trademark AIR FRANCE with the wording “online” in the Domain Name <airfranceonline.com>, does not eliminate the risk of confusion with Complainant’s trademark AIR FRANCE, which is the only distinctive element of the Domain Name in dispute. On the contrary, Complainant concludes that this combination suggests that the Domain Name <airfranceonline.com> refers to Complainant
In this sense, Complainant argues that its trademark is used in the great majority of countries of the world and, therefore, it is widely known and has a strong reputation. Thus, Respondent could not have ignored it at the time he applied for registration of the Domain Name in dispute.
Furthermore, Complainant alleges that the domain <airfranceonline.com> has been registered by FP Transitions PTY Ltd. in order to take advantage of 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.
B. Respondent
Respondent did not timely reply to Complainant’s contentions. However, on August 8, 2007, Respondent sent an e-mail to the Center claiming inter alia that it registered the disputed domain name in good faith as it is a company engaged in the travel organization business. Moreover, Respondent says that it does not know what rule or regulation it has contravened.
6. Discussion and Findings
According to paragraph 4(a) of the Policy Complainant must prove each of the following:
(i) that the domain name registered by Respondent is identical or confusingly similar to the trademarks or service marks in which Complainant has rights;
(ii) that Respondent has no rights or no legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is used in bad faith.
A. Identical or Confusingly Similar
The trademark AIR FRANCE is a widely known trademark. When a respondent merely adds generic or descriptive terms to an otherwise distinctive and famous trademark, the domain name is generally considered confusingly similar to the registered trademark.
There are numerous WIPO decisions where it was found that the addition of a generic term does not serve to distinguish the domain name from the trademark, but rather, would reinforce the association of Complainant’s trademark with the domain name (see e.g. Viacom International Inc. v. Frank F. Jackson and Nancy Miller,
WIPO Case No. D2003-0755; Caterpillar Inc. v. Roam the Planet, Ltd.,
WIPO Case No. D2000-0275).
Therefore, the Panel in the present case finds that the disputed domain name is confusingly similar to Complainant’s AIR FRANCE trademark and, thus, that the requirement of paragraph 4(a)(i) of the Policy is met.
B. Rights or Legitimate Interests
Complainant’s allegations remain uncontested. Respondent has not provided any evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right or legitimate interest in the disputed domain name. In addition, Complainant states that it has never authorized Respondent to make use of the trademark AIR FRANCE and there is no relationship between the parties.
The Panel also takes the view that using a widely known trademark in connection with any offering of goods or services, whether or not competitive, without the prior consent of the trademark owner or licensee is a clear indication of a lack of bona fides.
In the untimely arguments it submitted, Respondent claimed to be engaged in the travel organization business. However, a visit to Respondent’s web site currently under the disputed domain name only shows what appears to be a “link farm”, i.e. it hosts a list of sponsored links. At this point it is worth noting that Respondent’s untimely contentions are not supported by the contents of its website which currently appears to contain no offering of travel organization services among the subjects of the sponsored links. Such subjects currently appear to include: car insurance, mortgage refinancing, college loans, poker online, debt consolidation loan, domain names, weight loss, flowers online, cosmetic surgery, hair removal, dating services.
In any case, there is no evidence as to independent rights or legitimate interests of Respondent in the domain names pursuant to Paragraph 4(c) under the Policy, nor could the Panel find any indication of bona fide offering of goods or services. Furthermore, there is no evidentiary support that Respondent, as an individual, business, or other organization, has been commonly known by the disputed domain name or that it is making a legitimate non-commercial or fair use of the domain name.
Accordingly, the panel finds that Respondent has no right or legitimate interest in respect to the disputed domain name pursuant to Paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
According to Paragraph 4(a)(iii) of the Policy, Complainant must prove registration and use in bad faith. Paragraphs 4(b)(i)-(iv) of the Policy contain a non-exhaustive list of circumstances, which shall constitute evidence of registration and use of a domain name in bad faith.
The Panel finds that, Respondent has intentionally attempted to attract, for commercial gain, internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with Complainant’s mark. Respondent appears to implicitly acknowledge in his email of August 8, 2007 that prior to the registration of the disputed domain name, that wholly incorporate Complainant’s registered AIR FRANCE trademark, he was already aware of such trademark and that he chose the domain name because of the widespread advertising and marketing of goods and services under the AIR FRANCE trademark the circumstances of the case are in any case entirely consistent with such an inference, even if the Respondent’s comments were not considered.
Ithas been proven to the Panels satisfaction that in the web site in operation under the disputed domain name Respondent hosts a “link farm”, i.e., a list of sponsored links, unduly taking advantage of the well-known nature of Complainant’s mark to attract more internet users and generate revenue to Respondent’s benefit in the form of “pay per click”.
It should also be noted that Respondent’s untimely arguments presented in its email of August 8, 2007 to the Center only confirm its bad faith. It appears to the Panel from Respondent’s arguments that Respondent believed that if he were engaged in the travel organization business, an activity similar to the ones in which Complainant is engaged, there would be no wrongdoing, so he argued that he used the disputed domain name in such activity. However, a visit to Respondent’s web site showed that such contention was apparently untruthful, and that the subjects of the sponsored links of Respondent’s website do not include anything related to travel services. Such apparent failure to truthfully respond to Complainant’s contentions may itself be a sign of bad faith. The fact that Respondent made this claim, whatever his beliefs may have been, also shows that Respondent willfully sought to imitate and trade off the inclusion of Complainant’s well-known trademark in the disputed domain name.
The circumstances surrounding Respondent’s conduct are indicative of registration and use of the domain names in bad faith. In any case, Respondent is seeking to trade off on Complainant’s substantial goodwill associated with Complainant’s mark and to intentionally deceive the consuming public.
For all the aforementioned reasons, the Panel finds that Complainant has proven Paragraph 4(a)(iii) under 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, <airfranceonline.com> be transferred to Complainant.
Gabriel F. Leonardos
Sole Panelist
Dated: August 30, 2007
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