WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
WestJet Airlines Ltd. v. liu xiao dan (刘晓丹)
Case No. D2021-0871
1. The Parties
The Complainant is WestJet Airlines Ltd., Canada, represented by Gowling WLG (Canada) LLP, Canada.
The Respondent is liu xiao dan (刘晓丹), China.
2. The Domain Name and Registrar
The disputed domain name <westjett.com> is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on March 23, 2021. On March 24, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 25, 2021, 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 March 25, 2021 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 amendment to the Complaint in English on March 25, 2021.
On March 25, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On March 25, 2021, the Complainant submitted its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
The Center verified that the Complaint together with the amendment to 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 Chinese of the Complaint, and the proceeding commenced on April 9, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 29, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 30, 2021.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on May 7, 2021. 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
A. Complainant
The Complainant is an international airline incorporated in Canada in 1996, operating under the trade mark WESTJET (the “Trade Mark”). The Complainant is the owner of registrations for the Trade Mark in several jurisdictions worldwide, including Canadian Registration No. TMA480424, with a registration date of August 14, 1997.
B. Respondent
The Respondent is apparently an individual located in China.
C. The Disputed Domain Name
The disputed domain name was registered on February 28, 2021.
D. Use of the Disputed Domain Name
The disputed domain name currently resolves to an English language website providing sponsored links to airline and travel related websites (the “Website”). At the time of filing of the Complaint, the disputed domain name resolved to various websites, including the pay-per-click website displaying sponsored links to the competitors of the Complainant.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the Parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the Parties and undue delay to the proceeding.
The Complainant has requested that the language of the proceeding be English, for several reasons, including the fact the disputed domain name is an English language domain name; and the Website is an English language website.
The Respondent did not file a response and did not file any submissions with respect to the language of the proceeding.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in the English language. The Panel also notes that the relevant case related communications were sent in both English and Chinese and that the Respondent did not reply to any of those communications. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
6.2. Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name consists of a common, obvious, or intentional misspelling of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9).
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been resolved to the Website, containing pay-per-click links relating to the same travel and airline related services provided for many years by the Complainant under the Trade Mark, for commercial gain.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In light of the Complainant’s prior rights in the Trade Mark; the repute of the Trade Mark in the travel and airline field; the fact the disputed domain name comprises a common, obvious or intentional misspelling of the Trade Mark; the manner of use of the disputed domain name highlighted in Section 6.2.B. above in targeting the Complainant; and the Respondent’s failure to submit any response, the Panel finds that the requisite element of bad faith has been made out.
The Panel further notes that the Respondent has registered some other domain names which appear to be misspelling of third party brands.
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith.
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 <westjett.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: May 18, 2021
