WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Vueling Airlines, S.A. v. Timo Scherer

Case No. D2018-0622

1. The Parties

The Complainant is Vueling Airlines, S.A. of Barcelona, Spain, represented by Herrero & Asociados, Spain.

The Respondent is Timo Scherer of Pirmasens, Germany, self-represented.

2. The Domain Name and Registrar

The disputed domain name <flyvueling.com> is registered with Cronon AG (the "Registrar").

3. Procedural History

The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 21, 2018. On March 21, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 22, 2018, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

Pursuant to the Complaint submitted in English and the registrar verification dated March 22, 2018 stating that German is the language of the registration agreement of the disputed domain name, on March 27, 2018, the Center sent a request in English and German for the Parties to submit their comments on the language of the proceeding. On March 29, 2018, the Complainant submitted its request for English to be the language of the proceeding. The Respondent did not submit any request regarding the language of the proceeding.

The Center verified that the 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 and 4, the Center formally notified the Respondent in English and German of the Complaint, and the proceedings commenced on April 3, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 23, 2018. The Respondent did not submit any formal response but submitted various email communications between April 3, 2018 and April 25, 2018. On April 24, 2018, the Center notified the Parties that it would proceed to appointment of the administrative panel.

The Center appointed Andrea Mondini as the sole panelist in this matter on May 1, 2018. 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 Spanish low-cost airline offering its services under the VUELING trademark.

The Complainant is the owner of several registrations for the trademark VUELING which designates numerous countries, including International Trademark no. 1011739 registered on June 26, 2009 in classes 35, 39 and 43 and European Union Trade Mark no. 003190576 in classes 37, 39 and 43 registered on April 29, 2004.

The disputed domain name was registered on April 7, 2015. The Complainant evidences that the disputed domain name redirected to a website stating "DOMAINS FOR SALE. FOR LEASE" at the time of filing of the Complaint. The disputed domain name does not currently resolve to an active website.

5. Parties' Contentions

A. Complainant

The Complainant contends in essence:

- That the disputed domain name <flyvueling.com> is confusingly similar to its trademark VUELING because it incorporates this trademark in its entirety, whereas the addition of the descriptive word "fly" is directly related to the Complainant's services and does not dispel the confusing similarity;

- That the Respondent has no rights or legitimate interests in respect of the disputed domain name, and in particular that there is no relationship whatsoever between the Parties;

- That the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, because the disputed domain name leads to a website where it is offered for sale/lease;

- That the Respondent registered the disputed domain name in bad faith because it must have been aware of the Complainant's well-known trademark VUELING;

- That the Respondent is using the disputed domain name in bad faith by passively holding it on a domain name trading website.

B. Respondent

In his email of April 4, 2018, the Respondent stated in essence that although he registered the disputed domain name three years ago, the Complainant never approached him to discuss a domain name transfer, and that he was looking forward to being contacted directly by the Complainant. On April 17, 2018, he stated that he still had not been contacted by the Complainant.

In his email communications, the Respondent did not deny the Complainant's contentions.

On April 25, 2018 (i.e., after the expiration of the deadline to file a response), the Respondent purported to set the Complainant a last deadline until May 20, 2018 to personally contact him.

6. Discussion and Findings

According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:

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

(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.

6.1. Language of the Proceeding

In the present case, German is the language of the registration agreement. Pursuant to paragraph 11 of the Rules, unless otherwise agreed by the parties, the default language of the proceeding is the language of the registration agreement, subject to the authority of the panel to determine otherwise.

Paragraph 10 of the Rules vests a panel with authority to conduct the proceedings in a manner it considers appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.

The Complainant filed the Complaint in English and, on March 27, 2018, submitted its request for English to be the language of the proceeding. The Respondent did not submit any request regarding the language of the proceeding.

Considering (i) that the Respondent did not submit any request regarding the language of the proceeding, (ii) that the disputed domain name contains the English word "fly" and (iii) that text posted by the Respondent on the website to which the disputed domain name resolves is in English, the Panel determines that the language of the proceeding is English.

Given the Panel's ability to understand both English and German, and in the interest of fairness, the Panel accepts the communications filed by the Respondent in German without requesting a translation thereof.

6.2. Substantive Issues

A. Identical or Confusingly Similar

The Complainant has shown that it owns several registrations for the trademark VUELING designating numerous countries, including International Trademark no. 1011739 registered on June 26, 2009 in classes 35, 39 and 43 and European Union Trade Mark no. 003190576 in classes 37, 39 and 43 registered on April 29, 2004.

The Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark because it incorporates in its entirety the trademark VUELING. The addition of the word "fly", which happens to be descriptive of the Complainant's services, does not dispel confusing similarity.

Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant contends, credibly, that there is no relationship whatsoever between the Parties. In his email communications, the Respondent has not contended any rights or legitimate interests in the disputed domain name. Rather, the Respondent's email communications indicate that he registered the disputed domain name in the expectation that the Complainant would contact him to negotiate a transfer of the disputed domain name. Clearly, this does not qualify as a right or legitimate interest in the disputed domain name.

Accordingly, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.

Therefore, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Considering that the Complainant's VUELING trademark is wellknown and that the addition of the word "fly" obviously refers to aviation services, the Panel concludes that the Respondent must have had of the Complainant's trademark in mind when registering the disputed domain name and that he registered the disputed domain name in bad faith.

The Panel also holds that it emerges from the Respondent's communications that he registered the disputed domain name in bad faith for the purpose of selling or otherwise transferring the disputed domain name. The fact that he put the disputed domain name on sale on a domain name trading website shows that he is using the disputed domain name in bad faith within the meaning of paragraph 4(b)(i) of the Policy.

The Panel therefore finds that the Complainant has satisfied the requirement under 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 <flyvueling.com> be transferred to the Complainant.

Andrea Mondini
Sole Panelist
Date: May 3, 2018