WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Skyscanner Limited v. A. Algozor

Case No. DNL2020-0008

1. The Parties

The Complainant is Skyscanner Limited, United Kingdom, represented by Keltie LLP, United Kingdom.

The Respondent is A. Algozor, The Netherlands.

2. The Domain Name and Registrar

The disputed domain name <skyscaner.nl> (the “Domain Name”) is registered with SIDN through SXA Web Solutions (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 19, 2020. On February 19, 2020, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On February 20, 2020, SIDN transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing its 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 16.4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 24, 2020. In accordance with the Regulations, article 7.1, the due date for Response was March 15, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 20, 2020.

The Center appointed Willem J. H. Leppink as the panelist in this matter on April 2, 2020. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2.

4. Factual Background

The Complainant is Skyscanner Limited, a company incorporated in the United Kingdom. The Complainant is the creator of a travel search and price comparison website hosted at a range of domains in various jurisdictions, including <skyscanner.nl> (the “Website”).

In January 2008, the Website gained serious press exposure and the Complainant’s revenue rose in the financial year 2008–2009 from GBP 2.1m to GBP 8.8m. Currently, the Website attracts 100 million visits per month.

The Complainant owns numerous trademark registrations worldwide for SKYSCANNER and variations thereof, including:

- International Trademark Registration No. 900393 for SKYSCANNER, designating the European Union, registered on March 3, 2006; and

- International Trademark Registration No. 1030086 for SKYSCANNER, designating the European Union, registered on December 1, 2009

(hereinafter also referred to as the “Trademark” in singular).

The Domain Name was registered on September 28, 2008. At the time of the filing of the Complaint, the Domain Name was not active. Currently the Domain Name resolves to the Website.

5. Parties’ Contentions

A. Complainant

The Complainant contends the following.

The Domain Name is aurally identical and visually similar to a high degree to the Trademark. The only difference between the Domain Name and de Trademark is the omission of a letter ‘n’, so that the Domain Name must be a deliberate misspelling of the Trademark.

The Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent is not authorized or permitted to use the Trademark, nor is the Respondent associated with the Complainant. Furthermore, the Respondent is not using the Domain Name in connection with a bona fide offering of goods and services. Furthermore, the Domain Name is not in use at all.

The Domain Name was registered and is being used in bad faith. The Complainant is globally well-known and received substantive media attention for its services at the beginning of 2008. The Respondent must have been well aware of the Complainant and its rights and seeks to mislead consumers by an affiliation with or connection to the Trademark.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Pursuant to article 2.1 of the Regulations the Complainant must prove each of the following three elements:

a. 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 the General Municipal Register (Gemeentelijke Basisadministratie) of a municipality in the Netherlands, or the name of a Dutch public legal entity or the name of an association or foundation registered in the Netherlands under which the Complainant undertakes public activities on a permanent basis; and

b. the Respondent has no rights to or legitimate interests in the Domain Name; and

c. the Domain Name has been registered or is being used in bad faith.

Article 10.3 of the Regulations provides that in the event a respondent fails to submit a response, the complaint shall be granted unless the panel considers it to be without basis in law or in fact. The Panel thereby notes that this does not mean that the requested remedy should automatically be awarded. The Panel will have to determine whether the Complainant’s case prima facie meets the requirements of article 2.1 of the Regulations.

A. Identical or Confusingly Similar

Pursuant to article 2.1(a) of the Regulations, the Complainant must establish that the Domain Name is identical or confusingly similar to a trademark or trade name in which the Complainant has rights.

The Complainant has shown that it has rights in the Trademark.

The Domain Name only differs from the Trademark by the omission of the letter ‘n’.

The Trademark is therefore easily recognizable in the Domain Name. Moreover, it is well established that a domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered to be confusingly similar to the relevant mark for purposes of the first element (see section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”))¹.

It is accepted .nl case law that the country code Top-Level Domain “.nl” may be disregarded for purposes of article 2.1(a) of the Regulations. The Panel finds that the Domain Name is confusingly similar to the Trademark under the Regulations.

The Complainant has established the first element of article 2.1 of the Regulations.

B. Rights or Legitimate Interests

The Respondent did not reply to the Complainant’s contentions.

Consistent with earlier decisions under the Regulations, the Complainant must prima facie demonstrate that the Respondent has no rights to or legitimate interests in the Domain Name. If the Complainant succeeds in making out this prima facie case, the burden of production shifts to the Respondent, who will then have to come forward with appropriate allegations or evidence demonstrating a right to or legitimate interests in the Domain Name (See Auto 5 v. E. Shiripour, WIPO Case No. DNL2008-0027). The Respondent may demonstrate such rights or legitimate interests inter alia through any of the following circumstances based on article 3.1 of the Regulations:

a. before having any notice of the dispute, the Respondent made demonstrable preparations to use the Domain Name (or a name corresponding to the Domain Name) in connection with a bona fide offering of goods or services; or

b. the Respondent as an individual, business or other organization is commonly known by the Domain Name; or

c. the Respondent is making a legitimate noncommercial use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish or otherwise damage the relevant trademark, trade name, personal name, name of a Dutch public legal entity or name of an association or foundation located in the Netherlands.

There is no evidence in the case file that the Respondent has any rights or legitimate interests in the Domain Name.

The Respondent does not appear to be affiliated with the Complainant in any way. There is no evidence that the Respondent is commonly known as “Skyscaner”. There is also no evidence that the Respondent is, or has ever been, a licensee of the Complainant or that the Respondent has ever asked, or has ever been permitted in any way by the Complainant to register or use the Trademark, or to apply for or use any domain name incorporating either of these.

The Respondent did not demonstrate any use or demonstrable preparation to use the Domain Name in connection with a bona fide offering of goods or services.

Finally, in the circumstances of this case, the Panel finds that the Respondent’s lack of rights or legitimate interests in the Domain Name is further supported by the fact that no response was filed by the Respondent. See GA Modefine S.A. and Giorgio Armani S.p.A. v. Yoon-Min Yang, WIPO Case No. D2005-0090; and Pomellato S.p.A. v. Richard Tonetti, WIPO Case No. D2000-0493.

Consequently, the Panel finds it established that the Respondent has no rights or legitimate interests in the Domain Name.

The Complainant has thus established the second element of article 2.1 of the Regulations.

C. Registered or Used in Bad Faith

The Panel notes that the Trademark is, as are the activities of the Complainant, well-known throughout the world. Accordingly, in the Panel’s view, the Respondent must have been aware of the Complainant’s existence and rights at the time the Respondent registered the Domain Name.

Noting also the absence of a Response, there is no other plausible explanation why the Respondent registered the Domain Name, other than the Respondent being aware of the Trademark and aiming to capitalize on its reputation. As noted, the Domain Name was registered at a time when the Complainant was receiving significant media attention, and the record indicates that the Trademark may be considered well-known. The Panel finds that, in accordance with section 3.8.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the facts of the case point to an intent on the part of the Respondent to unfairly profit from the Complainant’s rights in this regard. Therefore, the Panel finds that the Respondent has registered the Domain Name in bad faith.

The Complaint therefore meets the bad-faith test of article 2.1.c. and article 3.2 under the Regulations.

In addition, as to use of the Domain Name, the Panel notes that the Domain Name currently resolves to the Website. In this connection, noting also the typosquatting nature of this case, it is possible that the Respondent seeks to sell the Domain Name at the Complainant’s expense; the risk also exists that the Respondent will use the Domain Name for email addresses impersonating the Complainant. In any event the Panel cannot perceive any plausible use in good faith.

The Panel finds that the Complainant has also established the third element of article 2.1 of the Regulations.

7. Decision

For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name <skyscaner.nl> be transferred to the Complainant.

Willem J. H. Leppink
Panelist
Date: April 7, 2020

¹ In view of the fact that the Regulations are to an extent based on the Uniform Domain Name Dispute Resolution Policy (“UDRP”) it is well established that cases decided under the UDRP, and therefore WIPO Overview 3.0, are relevant to this proceeding (see, e.g., Aktiebolaget Electrolux v. Beuk Horeca B.V., WIPO Case No. DNL2008-0050).