The Complainant is InterGlobe Aviation Limited of Haryana, India, represented by K&S Partners, India.
The Respondent is Domain Admin, Privacy Protect, LLC (PrivacyProtect.org) of Burlington, Massachusetts, United States of America / Domain Admin, Domain Privacy Guard Sociedad Anónima Ltd of Chitre, Panama.
The disputed domain name <goindigo.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 9, 2018. On August 9, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 10, 2018, 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 August 13, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 14, 2018.
The Center verified that the Complaint together with 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 17, 2018. In accordance with the Rules, paragraph 5, the due date for Response was September 6, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 7, 2018.
The Center appointed Adam Taylor as the sole panelist in this matter on September 14, 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.
The Complainant operates an Indian airline under the name “IndiGo”, incorporated in 2004. The Complainant now operates a fleet of over 170 aircraft with some 1,100 daily flights to 46 destinations in India and to nine international destinations. Its revenue in the financial year 2017 – 2018 was approximately INR 230,200 million.
In 2006, the Complainant launched its web portal at “www.goindigo.in”. More than 149 million Internet users have visited the site over the period July 2011 to July 2018.
The Complainant owns a number of trade marks for the term “IndiGo” and variations including Indian trade mark no. 1419008 for the stylised word INDIGO, registered on February 3, 2006, in classes 16 and 39.
The disputed domain name was first registered on April 9, 1997. According to archive WhoIs records supplied by the Complainant, in 2000 the disputed domain name was registered to “Indigo Construction” in the United States of America (“United States”), registrar Network Solutions, Inc. By 2016, the registrant was “New Venture Services, Corp”, also in the United States, registrar Network Solutions, LLC. Thereafter the disputed domain name was registered in the names of a number of difference privacy services as follows:
- April 17, 2017: Perfect Privacy LLC (registrar Network Solutions, LLC);
- May 23, 2017: Private Registrations Aktien Gesellschaft (registrar Network Solutions, LLC);
- April 9, 2018: Domain Admin, Privacy Protect, LLC (PrivacyProtect.org) (registrar PDR Ltd. d/b/a PublicDomainRegistry.com). Following the filing of this Complaint, the underlying registrant was revealed to be another privacy service: Domain Admin, Domain Privacy Guard Sociedad Anónima Ltd.
Screenshots from the Internet Archive at “www.archive.org” indicate that, in 1999 / 2000, Indigo Construction used the disputed domain name for its website. From 2002 to 2017, the disputed domain name resolved to a series of under construction and holding pages or else did not resolve at all. On February 24, 2018, the disputed domain name resolved to a parking page with flight-related sponsored links. When viewed by the Panel on October 4, 2018, the disputed domain name resolved to a similar parking page.
The Complainant sent cease-and-desist letters to the Respondent (i.e. Privacy Protect LLC) on June 22, 2018, and July 11, 2018. No substantive response was received.
The mark INDIGO has come to be associated exclusively with the Complainant as a result of its long continuous and extensive use, both in Indian and internationally.
The disputed domain name includes the Complainant’s INDIGO registered and unregistered mark and is therefore confusingly similar to it.
The Respondent lacks rights or legitimate interests in relation to the disputed domain name.
The Complainant has not authorised the Respondent to use the Complainant’s mark.
The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. The Respondent’s website has included sponsored links for competitors of the Complainant. The free tickets offered at the website at the disputed domain name tarnished the Complainant’s image as well as infringing its trade mark rights.
The disputed domain name was registered and is being used in bad faith. The Respondent acquired the disputed domain name at some point in 2018, based on the most recent change of registrant. The misuse of the disputed domain name makes it apparent that the Respondent registered the disputed domain name to take unfair advantage of the Complainant’s famous mark for commercial gain.
The Respondent’s bad faith is corroborated by its failure to respond to the Complainant’s letter.
The Respondent did not reply to the Complainant’s contentions.
The Complainant has established rights in the mark INDIGO by virtue of its registered trade marks as well as unregistered trade mark rights deriving from its extensive use of that name.
Section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) makes clear that, where the relevant trade mark is recognisable within the disputed domain name, the addition of other terms would not prevent a finding of confusing similarity under the first element.
Here, the Complainant’s distinctive trade mark is readily recognisable within the disputed domain name and, accordingly, the addition of the descriptive term “go” is insufficient to avert a finding of confusing similarity. Indeed, the combination of “go” and “Indigo” reflects exactly the name of the Complainant’s web portal.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy.
As explained in section 2.1 of the WIPO Overview 3.0, the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element.
Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark.
As to paragraph 4(c)(i) of the Policy, the disputed domain name has been used for a parking page with links to flight services, which compete with those supplied by the Complainant. Such use of the disputed domain name could not of itself confer rights or legitimate interests. See section 2.9 of the WIPO Overview 3.0, which states that use of a domain name to host a parked page comprising pay-per-click (“PPC”) links does not represent a bona fide offering where such links compete with or capitalise on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users.
While the identity of the underlying beneficial registrant remains unclear, as explained in section 6C below, it is at least evident that the use of the disputed domain name in 1999/2000 for construction services was by a previous registrant, unrelated to the Respondent.
Accordingly, there is no evidence of a bona fide offering of goods or services for the purposes of paragraph 4(c)(i) of the Policy. Nor is there any evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply in the circumstances of this case.
The Panel finds that the Complainant has established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent.
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy.
First, the Panel notes that the underlying beneficial registrant of the disputed domain name has not been identified. Instead, there is a “Russian doll” scenario whereby the registrant “disclosed” by the Registrar following the filing of the Complaint turned out to be yet another privacy service. Section 4.4.6 of the WIPO Overview 3.0 notes that such “multi-layered obfuscation” may support an inference of bad faith, e.g., as an attempt to shield illegitimate conduct from a UDRP proceeding. In the Panel’s view, such an inference is appropriate in this case.
Indeed, this lack of disclosure of the underlying beneficial registrant has hampered the assessment of the effective date of acquisition of the disputed domain name. The Complainant asserts that the Respondent should be treated as having acquired the disputed domain name in 2018, based on the most recent change of registrant / privacy service in April 9, 2018. The Panel notes, however, that in February 2018 the disputed domain name resolved to a parking page with pay-per-click links similar to the current version and so it may be that the underlying beneficial registrant acquired it before the date of the last change of registrant / privacy service. In addition, the Panel notes that by 2016 the registrant was “New Venture Services, Corp” and that afterwards at least four different privacy services have appeared as registrant of the disputed domain name. The Panel also notes that between 2017 and 2018 there was a change of the registrar of the disputed domain name. In the absence of a Response / explanation from the Respondent, the Panel thinks it reasonable to assess the acquisition date as being on May 23, 2017 - the last date on which there was a registrant change before the first evidence of use as a parking page — or a date around. This is of course still relatively recent and many years after the Complainant had both generated a substantial reputation in its trade mark and launched its web portal at “www.goindigo.in”.
In the Panel’s view, it is obvious that the Respondent acquired the disputed domain name with the Complainant’s distinctive and well-known trade mark in mind and the Panel has little difficulty in concluding that paragraph 4(b)(iv) of the Policy applies.
The disputed domain name has no obvious relevance to flight-related services independently of the Complainant’s trade mark. By using the disputed domain name1, which includes the Complainant’s distinctive trade mark and which reflects the exact name of the Complainant’s web portal (“www.goindigo.in”), in connection with a parking page with competitor flight-related links, the Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trade mark.
The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the Policy.
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, <goindigo.com> be transferred to the Complainant.
Date: October 4, 2018
1 The Complainant also provided undated evidence concerning alleged additional use of the disputed domain name for a website impersonating the Complainant as part of an apparent phishing exercise. However, the Panel has established that this evidence relates to a different, but very similar domain name, <goindıgo.com>, where the second “i” has been replaced by the Turkish character “ı”. The Panel can only assume that this evidence was included by mistake and, in any case, has disregarded it.
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