WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Wizz Air Hungary Légiközlekedési Korlátolt Felelősségű Társaság v. Contact Privacy Inc. / Michele Tercatin

Case No. D2014-1807

1. The Parties

The Complainant is Wizz Air Hungary Légiközlekedési Korlátolt Felelősségű Társaság of Budapest, Hungary, represented by CMS Cameron McKenna, Hungary.

The Respondent is Contact Privacy Inc. of Toronto, Canada / Michele Tercatin of Milan, Italy.

2. The Domain Name and Registrar

The disputed domain name <wizzairitalia.com> is registered with Tucows Inc. (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 15, 2014. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 16, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 17, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to amend the Complaint. The Complainant filed an amended Complaint on October 22, 2014.

The Center verified that the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), 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 proceeding commenced on October 23, 2014. In accordance with the Rules, paragraph 5(a), the due date for response was November 12, 2014. The Respondent did not submit any formal Response. However, an email communication was received on October 30, 2014 from Chris Jarratt.

The Center appointed George R. F. Souter as the sole panelist in this matter on November 24, 2014. 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 is a Hungarian airlines company, offering low-cost air travel throughout Europe, on over 150 routes, including Italy.

Details of the Complainant's ownership of International Registrations dating back to 2007, with coverage extending to, inter alia, Italy, of their trademarks WIZZ and WIZZAIR have been supplied to the Panel.

The disputed domain name was registered on March 31, 2011.

5. Parties' Contentions

A. Complainant

The Complainant alleges that the disputed domain name is confusingly similar to its WIZZAIR trademark, with the sole addition of the non-distinctive or descriptive word "italia".

The Complainant states that it has no contractual relationship with the Respondent, that it has not granted any licence or authorization to the Respondent to make any use of, or apply for registration of the disputed domain name. Further, the Complainant alleges that the Respondent is not, and never has been, known by the disputed domain name.

The Complainant alleges that that the disputed domain name was registered in bad faith, and is being used in bad faith in using the website operated under the disputed domain name without any right to do so derived from the Complainant and in infringement of the Complainant's WIZZ and WIZZAIR trademarks.

B. Respondent

The Respondent did not submit a formal Response to the Complaint.

However, an email communication was received by the Center on October 30, 2014, from Mr. Jarratt, who indicated that he represents Sei Pi Toscana Srl, the company utilizing the disputed domain name. In this communication, Mr. Jarrett admitted that his company was not an accredited agent of the Complainant (but expressed the desire to be one). He emphasized that only the Complainant's services were offered on the website operated under the disputed domain name and that the website clearly states that it is not the Complainant but a travel agent licensed to sell in Italy. Mr. Jaratt further indicated that his company's other websites "www.6invacanza.com" and "www.6involo.it" provide holiday packages and services of different airlines.

6. Discussion and Findings

Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

A. Preliminary Matter: Respondent's Identity

As the Respondent failed to respond, and Mr. Jarratt appears to claim interest in the disputed domain name on behalf of his company, the Panel considers Sei Pi Toscana Srl as the real party in interest and will refer to it as the Respondent going forward.

B. Identical or Confusingly Similar

It is well-established in decisions under the UDRP that generic Top-Level Domain ("gTLD") indicators (e.g., ".com", ".info", ".net", ".org") may generally be considered irrelevant in assessing confusing similarity between a trademark and a domain name. The Panel agrees with this view and considers the gTLD ".com" indicator to be irrelevant in the present case.

It is is well-established in prior decisions under the UDRP that the mere addition to a trademark in which the complainant has clear rights of a descriptive or non-distinctive element is insufficient to avoid a finding of confusing similarity. In the circumstances of the present case, the Panel is of the opinion that the word "italia" is clearly a descriptive or non-distinctive element and, accordingly, finds that the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.

C. Rights or Legitimate Interests

It is the predominant view of panels in previous UDRP decisions, with which the present Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. The Panel notes that while the Respondent only offers the Complainant's services at the disputed domain name and does include a disclaimer (albeit in small font) at the bottom of the website, the Respondent has acknowledged that it is not an authorized agent of the Complainant. The Panel is of the view that it is generally very difficult to establish a respondent's rights or legitimate interests if the respondent has no relevant trademark rights and offers to sell a complainant's services at a domain name identical or confusingly similar to the complainant's trademark without the complainant's authority. Accordingly, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name under paragraph 4(a)(ii) of the Policy.

D. Registered and Used in Bad Faith

The Panel is of the view that the finding that the Respondent has no rights or legitimate interests in the disputed domain name, may lead, in appropriate circumstances, to a finding that the disputed domain name was registered in bad faith. The Panel regards the circumstances of the present case, in which the Respondent was clearly aware of the existence of the Complainant's WIZZ and WIZZAIR trademarks, as making it appropriate for the Panel to find that the disputed domain name was registered in bad faith and the Panel so finds.

The Panel has examined the website operated under the disputed domain name. The text of the website does, as Mr. Jarratt claims, relate only to flights operated by the Complainant. However, the website does mention the "6involo delle Sei Pi Toscano Srl" company, and contains the message: "Per assistenza chiamare 0584 […] oppure 0584 […] dove i nostri operatori sono a vostra disposizione dal Lunedì al Venerdì dalle 09: 45 alle 13:00 e dalle 15:30 alle 19:00". This would translate into English as: "For assistance call 0584 […] or 0584[…] where our operators are at your service from Monday to Friday from 9.45 to 13.00 and from 15.30 to 19.00". The Panel notes that the phone number contained in the message is that mentioned in the email signature of Mr. Jarratt's communication of October 30, 2014. Noting that the Respondent also offers to sell services of the Complainant's competitors under the same company name at various websites, the Respondent can divert customers looking for the Complainant for its own commercial gain when contacted at the listed phone number. It is well-established in prior UDRP decisions that use of a website having the capacity to divert consumers to competing services is use in bad faith. The Panel is of the view that the possibility of consumers being diverted to competing service providers when seeking "assistenza" (assistance) cannot be discounted, and regards this as sufficient to regard the use of the website operated under the disputed domain name as being use in bad faith.

Accordingly, the Panel finds that the Complainant has satistied the provisions of paragraph 4(a)(iii) of the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <wizzairitalia.com> be transferred to the Complainant.

George R. F. Souter
Sole Panelist
Date: December 8, 2014