The Complainant is Société Air France of Roissy, France, represented by Meyer & Partenaires, Strasbourg, France.
The Respondent is A Coppola of Stege, Denmark.
2. The Domain Name
The disputed domain name <air-france.nl> (hereinafter the “Domain Name”) is registered with SIDN.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 5, 2009. On January 6, 2009, the Center transmitted by email to SIDN a request for registration verification in connection with the Domain Name. On January 8, 2009, SIDN transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 15.5, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 20, 2009. In accordance with the Regulations, article 7.1, the due date for Response was February 9, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 10, 2009.
The Center appointed Alfred Meijboom as the panelist in this matter on February 11, 2009. The Panelist finds that he was properly appointed. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 8.2.
4. Factual Background
The Complainant is a major French airline company, tracing its origins back to 1933. The Complainant is owner of several AIR FRANCE trademarks and different domain names, including <airfrance.com>, <airfrance.eu>, and <airfrance.nl>. The domain name <airfrance.nl> was registered by the Complainant on June 9, 1998.
The Domain Name was registered by the Respondent on October 7, 2007. On May 22, 2008, after the Complainant had become aware of this registration, the Complainant's representative sent a cease and desist letter to the Respondent, requesting the Respondent to transfer the Domain Name to the Complainant. The Complainant did not receive any response.
Currently, the Domain Name resolves to a website that generates a page of sponsored links to other, mostly air traffic and travel related, websites.
5. Parties' Contentions
A. Complainant
The Complainant claimed that it has been using AIR FRANCE as a trade name in commerce since 1933. Further, the Complainant claimed to be the owner of a large number of trademarks, including the following explicitly mentioned trademarks:
- the French trademark AIR FRANCE (no. 1 703 113) filed on October 31, 1991 in all classes. This trademark was renewed on September 27, 2001;
- the French trademark AIR FRANCE (no. 99 811 269) filed on September 6, 1999 in 32 different classes, among which class 38 for internet services;
- the Community trademark AIR FRANCE (no. 2528461) filed on January 9, 2002 in classes 6, 8, 9, 12, 14, 16, 18-21, 24, 25, 28-39 and 41-45.
The Complainant has stated that the AIR FRANCE trademarks are well-known worldwide, that this has also been recognized in previous UDRP cases (e.g., Société Air France v. Spiral Matrix,WIPO Case No. D2005-1337) and ADR cases (e.g. ADR Case 04318 regarding <e-airfrance.eu> and ADR Case 04141 regarding <airfrancesucks.eu>) and that the AIR FRANCE trademark is well-known in the meaning of article 6bis of the Paris Convention.
The Complainant has contended that the Domain Name is identical to the Complainant's AIR FRANCE trademark.
Furthermore, the Complainant has put forward that the Respondent has no rights or legitimate interests in the Domain Name, since the Respondent is not related to the Complainant's business, nor has the Complainant granted the Respondent any license or authorization to register or use the Domain Name. Also, the Respondent was never known by the name “Air France”. The Complainant further claimed that the Respondent has registered the Domain Name to take advantage of the Complainant's well-known trademark to confuse and divert internet users to competing websites in the field of tourism and travel through a “pay per click” domain parking solution, which is not a bona fide offering of goods and services or a noncommercial or fair use under the Regulations.
Lastly, the Complainant asserted that the Domain Name has been registered and is being used in bad faith. First, the Complainant has stressed that a prima facie presumption that the Respondent registered the Domain Name in bad faith must exist, referring to Arthur Guinness Son & Co. (Dublin) Ltd v. Steel Vertigogo, WIPO Case No. D2001-0020). According to the Complainant, there is no doubt the Respondent knew of the Complainant and has registered the Domain Name for the purpose of generating commercial gain. Therefore, according to the Complainant, the Respondent has registered the Domain Name in bad faith. Secondly, the Complainant has contended that the Respondent uses the Domain Name in bad faith by diverting Internet users to a parking webpage displaying several hyperlinks in the field of tourism and travel. These hyperlinks could generate revenue to the benefit of the Respondent. The Complainant claims that such use could mislead consumers and must be considered as unfair competition and as use in bad faith.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Language of proceedings
The Complainant has filed the Complaint in the English language thereby claiming the administrative proceedings be in the English language. In that respect, the Complainant referred to, inter alia, three WIPO Panel decisions concerning “.com” domain names.
The “.com” domain name proceedings are based on the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), while “.nl” domain name proceedings are based on the Regulations. Paragraph 11(a) of the Rules provides that the language of the proceeding shall be the language of the Registration Agreement unless otherwise specified in that agreement or agreed by the parties, while article 16 of the Regulations provides that the language of the proceedings shall, in principle, be Dutch, unless the panelist decides otherwise. A party who wishes the language of a “.nl” domain name proceeding to be English, should substantiate that it would be unreasonably onerous if the proceedings would take place in Dutch (e.g. AB Electrolux v. Marcel Vlaar,WIPO Case No. DNL2008-0005).
Given the fact that the Respondent has not responded to the Complaint and, according to the Whois register, the Respondent's address is in Denmark it is likely that the Respondent does not understand the Dutch language. It further became clear from SNS Bank N.V. v. A Coppola,WIPO Case No. DNL2008-0011, that the Respondent does understand the English language, as he sent an e-mail in English to the Center after receipt of that complaint in Dutch. Furthermore, the Respondent has not objected to English being the language of proceedings. In these circumstances the current proceedings shall be in English.
General remarks
The Regulations, article 7.4, provides that in the event that a respondent fails to submit a response the complaint shall be granted unless the panelist considers it to be without basis in law or in fact.
According to the Regulations, article 2.1, the requested remedy shall be granted if the Complainant asserts and establishes each of the following:
A. that the Domain Name is identical or confusingly similar to
I. a trademark, or trade name, protected under Dutch law in which the Complainant has rights; or
II. a personal name registered in a Dutch municipal register of persons (“gemeentelijke basisadministratie”), or a name of a Dutch public legal entity or a name of an association or foundation located in the Netherlands under which the Complainant undertakes public activities on a permanent basis; and
B. that the Respondent has no rights to or legitimate interests in the Domain Name; and
C. that the Domain Name has been registered or is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant claimed that is has used the trade name AIR FRANCE (the “Trade Name”) in commerce since 1933. Yet the Complaint did not claim or show that the Trade Name has been used in the Netherlands since 1933 and that it is therefore protected under Dutch law pursuant to the Handelsnaamwet of 1921. According to the Panelist's personal knowledge, however, Complainant has been using the Trade Name in the Netherlands in commerce for many decades, so that the Panelist is satisfied that the Complainant owns the Trade Name which is protected under Dutch law.
The Complainant also owns a Community trademark AIR FRANCE (the “Trademark”) which is valid in the Netherlands and which dates from before Respondent's registration of the Domain Name. The Complainant also relied on two French AIR FRANCE trademarks, which shall be disregarded as these trademarks are not protected under Dutch law.
The Panelist finds that the Complainant has rights in the Trade Name and the Trademark, both of which are protected under Dutch law. Since the entire AIR FRANCE trade name and trademark are incorporated in the Domain Name, the Panelist finds the Domain Name to be confusingly similar to the Trade Name and the Trademark. This is not altered by the addition of a hyphen between the two words (e.g. see Royal Canin v. “Planet Media Group N.V.”,WIPO Case No. DNL2008-0009).
The Panelist finds therefore that Complainant has complied with article 2.1(a) of the Regulations.
B. Rights or Legitimate Interests
According to article 2.1(b) of the Regulations the Complainant must demonstrate that the Respondent has no rights or legitimate interests in the Domain Name. This condition is met if the Complainant makes a prima facie case that the Respondent has no rights or legitimate interests, and the Respondent fails to rebut that showing by providing evidence of for example any of the three circumstances mentioned in article 3.1 of the Regulations.
The Complainant has put forward that by, using the Domain Name for commercial gain, the Respondent takes unfair advantage of the Trademark. The Respondent did not dispute the Complainant's claim to that effect, nor could the Panelist establish any indications that the Respondent (a) before having notice of the dispute, made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services, (b) is commonly known by the Domain Name, or (c) is making a legitimate noncommercial use of the Domain Name. For these reasons, the Panelist finds that the Respondent has no rights to or legitimate interests in the Domain Name.
C. Registered or Used in Bad Faith
Article 2.1(c) of the Regulations provides that the Domain Name has been registered or is being used in bad faith.
The Respondent registered the Domain Name after the registration of the Trademark. The Domain Name further resolves to a website that offers sponsored links to travel related websites.
For these reasons, the Panelist is of the opinion that the Domain Name, which consists of the AIR FRANCE trademark in its entirety, must have been registered by someone who was familiar with the well-known AIR FRANCE trademark of the Complainant.
Given the foregoing, the Panelist finds that the Domain Name was registered in bad faith. The Panelist thus finds that the Complainant has satisfied the Regulations, article 2.1(c), for which reason there is no need to discuss whether the Domain Name is also being used in bad faith.
7. Decision
For all the foregoing reasons, in accordance with articles 1 and 13 of the Regulations, the Panelist orders that the domain name <air-france.nl> be transferred to the Complainant.
Alfred Meijboom Sole Panelist
Dated: February 23, 2009
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