WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Comair Limited v. Domain May Be For Sale, Check Afternic.com Domain Admin, Whois Foundation
Case No. D2019-2916
1. The Parties
The Complainant is Comair Limited, South Africa, represented by Adams & Adams Attorneys, South Africa.
The Respondent is Domain May Be For Sale, Check Afternic.Com Domain Admin, Whois Foundation, Panama.
2. The Domain Name and Registrar
The disputed domain name <kululua.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 27, 2019. On November 27, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 28, 2019, 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 November 29, 2019, 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 December 4, 2019.
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 December 5, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 25, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 26, 2019.
The Center appointed Marilena Comanescu as the sole panelist in this matter on January 2, 2020. 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 language of the proceedings is English.
4. Factual Background
The Complainant Comair Limited is a South African airline service provider listed on the Johannesburg Stock Exchange since 1998.
According to its assertions, in 2001, the Complainant launched a low-fare carrier under the name Kulula, which currently operates more than 600 flights a month and has gained substantial recognition for travel related services in South Africa.
The Complainant holds several trademark registrations for KULULA, such as the following:
- the Namibia trademark registration number 2002001451, filed on December 19, 2002, and registered on August 27, 2004 for services in class 41; and
- the Botswana trademark registration number 2002000698, filed on December 19, 2002, and registered on August 19, 2008 for goods and services in classes 9, 12, 16, 25, 35, 36, 38, 41, 43, and 45.
The Complainant holds domain names incorporating the mark KULULA, such as <kulula.com> (the main website), <kulula.mobi>, <kulula.co.za>, <kulula-airlines.co.za>, <flykulula.co.za>, or <kulula-air.co.za>.
The disputed domain name <kululua.com> was registered on November 17, 2005, and, according to the evidence provided in the Complaint, it was used in connection with pay‑per‑click pages (“PPC”) with sponsored links related to, inter alia, services similar to those offered by the Complainant.
Also, the disputed domain name was offered for public sale for the amount of USD 3,359.
Prior to the present proceedings, on October 16, 2019, the Complainant sent a cease and desist letter to the Respondent requesting the voluntary cancelation or transfer of the disputed domain name, followed by a second letter. No reaction was receive to either letter.
According to the information provided in the amended Complaint, the Respondent was involved in numerous other domain name disputes, decided against it. See for example Skyscanner Limited v. Domain Admin, Privacy Protect, LLC and DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin, Whois Foundation,
WIPO Case No. D2019-2023; Bayerische Motoren Werke AG v. Domain May Be for Sale, Check Afternic.Com / Hulmiho Ukolen, Poste restante,
WIPO Case No. D2019-1238; Syngenta Participations AG v. Domain May Be For Sale, Check afternic.com, Domain Registries Foundation,
WIPO Case No. D2018-1669; Andrey Ternovskiy dba Chatroulette v. Whois Foundation, Domain May be For Sale, Check Afternic.com Domain Admin,
WIPO Case No. D2018-2259; Interbond Corporation of America d/b/a BrandsMart U.S.A. v. Domain May be for Sale, Check Afternic.Com Domain Admin, Whois Foundation,
WIPO Case No. D2018-2226; Cartier International A.G. v. Domain May be for Sale, Check Afternic.com, Domain Admin, Domain Registries Foundation,
WIPO Case No. D2016-1775; William Grant & Sons Limited v. Domain may be for sale, Check afternic.com Domain Admin, Domain Registries Foundation,
WIPO Case No. D2017-1518; and Six Continents Hotels, Inc., Six Continents Limited v. Domain May Be for Sale, Check Afternic.com Domain Admin/Whois Foundation,
WIPO Case No. D2016-0976.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to its well-known trademark KULULA containing an obvious typo error, the Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent registered and is using the disputed domain name in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In view of the Respondent’s default, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel will further analyze the potential concurrence of the above circumstances.
A. Identical or Confusingly Similar
The Complainant holds rights in the KULULA trademark.
The disputed domain name <kululua.com> incorporates the Complainant’s trademark KULULA with a misspelling, an additional letter “u”. However, such addition does not prevent a finding of confusing similarity as the Complainant’s trademark is clearly recognizable within the disputed domain name.
Numerous UDRP panels have considered that a domain name which consists of a common, obvious or intentional misspelling of a trademark is confusingly similar to the relevant mark for the purpose of the first element. See section 1.9 of theWIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Further, it is well established in decisions under the UDRP that the generic Top-Level Domain (“gTLD”) (e.g.,“.com”, “.info”, “.org”) may typically be disregarded for the purposes of consideration of confusing similarity between a trademark and a domain name.
Given the above, the Panel finds that the disputed domain name <kululua.com> is confusingly similar to the Complainant’s trademark KULULA, pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Complainant asserts that the Respondent does not hold any trademark rights, license or authorization whatsoever to use the mark KULULA, that the Respondent is not commonly known by the disputed domain name, and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services.
Under the Policy, “where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”. See section 2.1 of theWIPO Overview 3.0.
The Respondent has not replied to the Complainant’s contentions and has not come forward with relevant evidence to rebut the Complainant’s prima facie case.
There is nothing in the record suggesting that the Respondent has ever been commonly known by the disputed domain name.
The Respondent has used the disputed domain name in connection with a parking page displaying PPC links, promoting services of the Complainant’s competitors. UDRP panels have constantly found that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s marks or otherwise mislead Internet users. See section 2.9 of theWIPO Overview 3.0.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Complainant holds trademark rights for KULULA since at least 2002. This Panel accepts the Complainant’s evidence that KULULA trademark is distinctive and has gained substantial reputation in relation to airline services in Africa.
The disputed domain name was created in 2005 and incorporates the Complainant’s mark with a minor alteration, an additional letter “u”.
For the above, the Panel finds that the disputed domain name was registered in bad faith, knowing the Complainant and targeting its trademark.
At the time of filing the Complaint, the disputed domain name resolved to a farm page providing links to services similar to those offered by the Complainant.
Paragraph 4(b)(iv) of the Policy provides that the use of a domain name to intentionally attempt “to attract, for commercial gain, Internet users to [the respondent’s] 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 [the respondent’s] website or location or of a product or service on [the respondent’s] website or location” is evidence of registration and use in bad faith.
The Respondent was using without permission the Complainant’s trademark in order to get traffic on its web portal or to misleadingly divert Internet users to third parties websites, and thus to obtain commercial gain from the false impression created with regard to a potential affiliation or connection with the Complainant.
Paragraph 4(b)(i) of the Policy provides a circumstance of bad faith registration and use when the respondent has acquired the domain name primarily for the purpose of selling or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or to a competitor of that complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name. In the present matter, according to the evidence provided in the Complaint, the disputed domain name was offered for public sale for the amount of USD 3,359. The Panel finds that this amount exceeds the out-of-pocket costs directly related to the disputed domain name.
Also, as provided in the amended Complaint, the Respondent has already been the subject of adverse decisions in numerous previous UDRP proceedings and this falls within the circumstances listed by paragraph 4(b)(ii) of the Policy and demonstrates that the Respondent has engaged in a pattern of bad faith behaviour.
Furthermore, the Respondent registered the disputed domain name under a privacy service, provided inaccurate contact information in the WhoIs, and refused to participate in the present proceedings in order to put forward any arguments in its favor.
For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
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 <kululua.com> be transferred to the Complainant.
Marilena Comanescu
Sole Panelist
Date: January 10, 2020
