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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Aer Rianta cpt v Belinda Simpson

Case No. D2000-1165

 

1. The Parties

The Complainant is Aer Rianta cpt, a Public Limited Company which has its principal place of business at Dublin Airport, Dublin, Ireland. It is represented by Mr. Rob Corbet of Arthur Cox Solicitors, Dublin, Ireland.

The Respondent is Ms. Belinda Simpson of 1/3 Ham Street, South Windsor, NSW, Australia.

 

2. The Domain Name and Registrar

The domain name at issue is "aerrianta.com". The domain name is registered with Network Solutions Inc., 505 Huntmar Park Drive, Herndon, Virginia 20170, United States of America ("NSI"). The domain name was registered on August 19, 2000.

 

3. Procedural History

The Complaint submitted by Aer Rianta cpt was received on September 1, 2000, (electronic version) and September 6, 2000, (hard copy) by the World Intellectual Property Organization Arbitration and Mediation Center ("WIPO Center").

On September 6, 2000, a request for Registrar verification was transmitted by the WIPO Center to NSI, requesting it to:

Confirm that a copy of the Complaint had been sent to it by the Complainant as required by the WIPO Supplemental Rules for Uniform Dispute Resolution Policy ("Supplemental Rules"), paragraph 4(b).

Confirm that the domain name at issue is registered with NSI.

Confirm that the person identified as the Respondent is the current registrant of the domain name.

Provide full contact details, i.e., postal address(es), telephone number(s), facsimile number(s), email address(es), available in the Registrar’s WHOIS database for the registrant of the disputed domain name, the technical contact, the administrative contact and the billing contact for the domain name.

Confirm that the Uniform Domain Name Dispute Resolution Policy was in effect.

Indicate the current status of the domain name.

By email dated September 10, 2000, the Registrar advised WIPO Center as follows:

NSI had received the Complaint sent by the Complainant.

NSI is the Registrar of the domain name registration "aerrianta.com".

The Respondent is shown as the "current registrant" of the domain name "aerrianta.com". The Registrant’s contact details are as above.

The administrative and billing contact is: SIMPSON, BELINDA (BX5359), "sb_investigations@hotmail.com", SIMPSON BELINDA, 1/3 HAM STREET, SOUTH WINDSOR, NEW SOUTH WALES, 2756, AUSTRALIA.

The technical and zone contact is: WorldNIC Name Host (HOST-ORG) "namehost@WORLDNIC.COM", Network Solutions, Inc., 505 Huntmar Park Drive, Herndon, VA 20170

1-888-642-9675.

NSI’s 5.0 Service Agreement is in effect.

The domain name registration "aerrianta.com" is in "Active" status.

NSI has currently incorporated in its agreements the policy for Uniform Domain Name Dispute Resolution adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN").

The advice from NSI that the domain name in question is still "active", indicates the Respondent has not requested that the domain name at issue be deleted from the domain name database. The Respondent has not sought to terminate the agreement with NSI. Accordingly, the Respondent is bound by the provisions of NSI’s Domain Name Dispute Resolution Policy, i.e., the ICANN policy. The Respondent has not challenged the jurisdiction of the Panel.

Having verified that the Complaint satisfied the formal requirements of the Uniform Policy and the Uniform Rules, the WIPO Center on August 22, 2000, transmitted by post/courier and by email a notification of Complaint and Commencement of Administrative Proceedings to the Respondent. A copy of the Complaint was also emailed to NSI and ICANN.

The Complainant elected to have its Complaint resolved by a single panel member: it has duly paid the amount required of it to the WIPO Center.

The Respondent was advised that a Response to the Complaint was required within 20 calendar days from the date of Commencement of Administrative Proceeding (i.e., by September 10, 2000). The Respondent was also advised that any Response should be communicated, in accordance with the Rules, by four sets of hard copy and by email.

The Respondent has submitted a Response to the Complaint which was acknowledged by the WIPO Center on September 26, 2000.

On October 5, 2000, the WIPO Center invited Andrew Brown, Barrister, of Auckland, New Zealand, to serve as Sole Panelist in the case. It transmitted to him a statement of acceptance and requested a declaration of impartiality and independence.

On October 6, 2000, Andrew Brown advised his acceptance and forwarded to the WIPO Center. The Panelist finds that the Administrative Panel was properly constituted in accordance with the Rules and the Supplemental Rules.

On October 9, 2000, WIPO Center forwarded to Andrew Brown by email the relevant submissions and the record. These were received by him on or about October 9, 2000. In terms of Rule 5(b), in the absence of exceptional circumstances, the Panel was required to forward its decision by October 23, 2000.

The Panel has independently determined and agrees with the assessment of WIPO Center that the Complaint meets the formal requirements of the Rules for Uniform Domain Name Dispute Resolution Policy as approved by ICANN on October 24, 1999, ("the Rules") and the Supplemental Rules.

The language of the administrative proceeding is English, being the language of the registration agreement.

 

4. Factual Background

The Complainant owns, operates and develops Ireland’s principal airports. The name and trademark AER RIANTA has been in use since the Complainant first began operations in 1937, and is claimed to be synonymous with the Complainant and its operations. The Complainant is the registered proprietor in Ireland of a logo mark comprising the words AER RIANTA, registered with effect from July 1, 1996, and covering services and classes 35, 37, 38, 39, 41 and 42. The Complainant also refers to a registration in class 4 although no evidence was produced of that registration.

The Respondent is resident in New South Wales, Australia. As at the date of the complaint, the website directed the user to another website "airportpolice.com". At the time of this decision, the website "aerrianta.com" states :

"aerrianta.com" HOMEPAGE

CURRENTLY UNDER REVIEW.

"sb_investigations@hotmail.com"

 

5. Parties’ Contentions

A. The Complainant

The Complainant submits that as at the date of the complaint, entry of the URL www.aerrianta.com directs the user directly to another website www.airportpolice.com. The Complainant has produced screen shots from this website and alleges that the content on the site contains serious and defamatory allegations of Aer Rianta. The Complainant points to one statement:

"As the Investigation goes on we find more and more corruption within the organization of Aer Rianta that we will be developing this site into a permanent fixture."

The Complainant submits that the Respondent has no legal or legitimate right to use the Complainant’s name and that the domain name has been deliberately used by the Respondent to direct internet users who seek access to genuine information about the Complainant to a website which has, as its primary purpose, injury of the Complainant’s reputation and goodwill in the name Aer Rianta.

In addition, the Complainant contends that:

(a) The Respondent registered the domain name primarily to publish injurious statements about the Complainant and to disrupt its business;

(b) The Respondent’s ongoing purpose in holding the domain name "aerrianta.com" is to direct internet traffic to another site to prevent the Complainant from reflecting its trade marks in a corresponding domain name;

(c) The Respondent’s use is designed to misleadingly divert consumers and to tarnish the Complainants trademarks or service marks.

The Complainant seeks transfer of the contested domain name to it.

The Complainant has also forwarded to the Panelist an extract from the Dublin People newspaper dated October 3, 2000, concerning the website "aerrianta.com". This quotes a spokesperson for SB Investigations, the entity behind the website:

"SB Investigations confirmed to The People that they have demanded a sum of $10,000 (AUS) from Aer Rianta for the return of the domain name. The money, they claim, will be used to cover expenses incurred during their investigations to date."

B. The Respondent

The Respondent does not claim any rights to the trade mark AER RIANTA. She claims that she purchased the domain name in good faith and that it always forwarded to another domain name. In further response, the Respondent states :

(a) As soon as she was "made aware that there was a problem" she stated that this was not the official Aer Rianta site and placed a pointer to the official site.

(b) The domain name was offered in good faith to Aer Rianta through Aer Rianta’s solicitor and that Aer Rianta was also offered pages free of charge so that it could place its own statement on the site.

(c) The Respondent has "no great objection to the site being given back to Aer Rianta, but as we have put so much money up for the investigation, then we feel that Aer Rianta should pay for the site to be passed over to them".

(d) The trademark AER RIANTA is spelt as two words whereas in the domain name it is not.

The Respondent asks that if the Panelist rules against her then the site should be held in abeyance "as this investigation will now be used in the numerous cases that will be taken against" Aer Rianta.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel to:

"decide a complaint on the basis of the statements and documents submitted in accordance with the policy, these rules and any rules and principles of law that it deems applicable".

The burden for the Complainant, under paragraph 4(a) of the ICANN Policy, is to show:

(i) That the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) That the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) That the domain name has been registered and is being used by the Respondent in bad faith.

Identical or Confusingly Similar to Trademark

The Panel finds that the domain name "aerrianta.com" is identical or confusingly similar to the trademark AER RIANTA for which the Complainant has registered trademarks and other rights. The fact that there is no gap between Aer and Rianta in the domain name is not a material difference.

No Rights or Legitimate Interests

Likewise the Panel decides that the Respondent has no rights or legitimate interests in respect of the domain name at issue. The Respondent does not claim any rights to the trademark AER RIANTA. A number of statements in her Response acknowledge Aer Rianta’s rights to its trademark including the fact that the Respondent has offered the domain name to the Complainant through its solicitor and that she has "no great objection to the site being given back to Aer Rianta".

Bad Faith

Paragraph 4(a)(iii) of the ICANN Policy requires the Complainant to show on balance that the domain name was registered and used in bad faith. Paragraph 4(b) lists a series of circumstances, which are evidence of such bad faith. However, this is not an exclusive list.

There is no evidence that the Respondent registered the domain name to prevent the Complainant from using the domain name nor that she intentionally intends to attract Internet users for commercial gain by creating the likelihood of confusion.

However, the Panel considers that the Respondent has registered and used the domain name in bad faith for the following reasons in combination:

(a) It is apparent from the Respondent’s response that she was well aware of the trademark AER RIANTA at the time the domain name was registered. Indeed, the reason for registration of the domain name was because the Respondent wanted to establish a site referring to Aer Rianta. Once it is shown that a Respondent is aware of another’s trademark rights before registration of the domain name, this does remove the presumption of good faith – so the Respondent must put forward credible evidence of legitimate activities to overcome suggestions of bad faith.

(b) It is significant that the Respondent is only using the website "aerrianta.com" as a conduit to a second website containing articles and complaints about the activities of the Complainant. In this case, the fact that the website is not being operated in its own right shows that the Respondent has registered and used the domain name in order to attract web users who might genuinely seek information about Aer Rianta intending to then expose them to criticisms and complaints about the company.

(c) The Respondent has not put forward any genuine reason for registration and use of the domain name. Although there is a claim to have purchased the domain name "in good faith", the Respondent gives no actual reason for this. The real reason appears to be the intent expressed in the Response namely that "people have had to take all sorts of avenues to try and expose what is going on in Aer Rianta".

(d) The Respondent states in her response that she has offered the domain name "in good faith" to Aer Rianta through its solicitors. The Respondent has also indicated that she has no great objection to the site "being given back to the Complainant". This latter statement involves an admission and acknowledgment that the domain name properly belongs to Aer Rianta and is being used without authority.

(e) The Respondent is now opportunistically seeking payment for relinquishing the site. Although there is no evidence that the domain name was registered with the intent that a sum be demanded for its return, the Respondent has now made such a request for payment. The Respondent now wants a price for the return of the domain name to pay towards the investigation of Aer Rianta which she is pursuing (pages1-2 of the Response). The press report supplied by the Complainant quotes the Respondent as seeking a sum of AUS$10,000. The subsequent seeking of such a payment in circumstances where the Respondent knew of Aer Rianta’s trademark rights at the time of registration of the domain name involves "bad faith".

For these reasons, the Panel finds that the domain name "aerrianta.com" has been registered and has been used by the Respondent in bad faith.

 

7. Legal Considerations

The Panel finds it unnecessary to refer in any depth to principles of law. However, reference is made to the decision in Case No D2000-1081 Vie de France Yamazaki Inc v Donna Sayada as to the circumstances applying where the Respondent knows of the Complainant’s trademark rights as at the date of registration of the domain name.

 

8. Decision

For the foregoing reasons, the Panel decides:

(a) that the domain name registered by the Respondent is identical or confusingly similar to the trademark to which the Complainant has rights;

(b) that the Respondent has no rights or legitimate interests in respect of the domain name; and

(c) the Respondent’s domain name has been registered and is being used in bad faith.

Accordingly, pursuant to paragraph 4(i) of the Policy, the Panel requires that the registration of the domain name "aerrianta.com" be transferred to the Complainant.

 


Andrew Brown
Presiding Panelist

Dated: 24 October, 2000

 

Источник информации: https://internet-law.ru/intlaw/udrp/2000/d2000-1165.html

 

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