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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Iberia Líneas Aereas de España, S.A. v. Joan F. Casas

Case Nє D2002-0019

 

1. The Parties

The Complainant is IBERIA LINEAS AEREAS DE ESPAÑA, S.A. a company incorporated in Spain. Its legal head office is in c/Velázquez nє 130, 28006 Madrid, Spain. Its representative is Mrs. Elena Fernández González in the name of Clarke, Modet & Co.

The Respondent is JOAN F. CASAS, with registered address in 22 Juliol, 240 Terrassa, E-08221 Barcelona, Spain.

 

2. Domain Name and Registrar

The domain name at issue is <iberiaplus.com>.

The registrar is Open SRS c/o Tucows.com Inc. with address at 96 Mowat Ave. Toronto, Ontario 3M1.

 

3. Procedural History

On January 10, 2002, the Center received by e-mail a Complaint in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999, (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999, (the "Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The hardcopy of the complaint was received on January 15, 2002.

At the Center’s request, on January 15, 2002, the Registrar OPEN SRS/TUCOWS, INC. confirmed to the Center that the domain name at issue is registered with it, that the Respondent is the registrant, that is Joan F. Casas, 22 juliol, 240, Terrassa, BCN 08221, ES and that the domain name is active.

On January 18, 2002, the Center sent to the Respondent a Notification of Complaint and Commencement of Administrative Proceeding.

On February 12, 2002, the Center comunicated to both parties the Notification of Respondent Default.

After having received Alberto Bercovitz Statement of Acceptance and Declaration of Impartiality and Independence, the Center appointed him as a Sole Panelist, and transmitted him the case file on February 26, 2002.

 

4. Factual Background

The following facts are established:

The Complainant was formally constituted on June 28, 1927, and as of December 14, 1927, it began a regular service between Madrid and Barcelona. Since that time and until now Iberia is the leading airline in Spain.

Today Iberia Group flies to 99 destinations in 42 countries. With a fleet of more than 200 aircrafts, it offers an average of 900 daily flights. In 1999, Iberia carried 26 million passengers and 22,000 tones of freight. The number of its destinations, the frequency of its flights, as well as its market share, together make Iberia the unchallenged leader of the Spanish market.

The iberia.com site now receives some 25000 visits each day, with an average duration of 10 minutes.

The Complainant holds among others the following trademarks registered in Spain

Country

Registration No.

Application Date

Name

Spain

Mark nє 1.653.752

August 21, 1991

IBERIA PLUS

Spain

Mark nє 1.653.753

August 21, 1991

IBERIA PLUS

Spain

Mark nє 1.734.541

December 9, 1992

IBERIA PLUS

Spain

Mark, nє 1.734.542

December 9, 1992

IBERIA PLUS

Spain

Mark nє 1.734.543

December 9, 1992

IBERIA PLUS

European Union

CTM nє 751.768

February 18, 1998

IBERIA PLUS

Int. Mark *

Int. Mark nє 614.250

January 18, 1994

IBERIA PLUS

Int. Mark **

Int. Mark nє 703.155

November 19, 1998

IBERIA IB PLUS CARGO

* Countries covered by such registration: Austria, Benelux, Germany, France, Italy and Portugal

** Countries covered by such registration: Austria, Benelux, Czech Republic, Cuba, Germany, France, Italy, Portugal, Denmark, Finland, Great Britain, Norway and Sweden.

"Iberia Plus" is a trademark of the Iberia Group which offers to their clients different awards and bids for different services at a reduced price. The way to obtain all this benefits comes from the titleholding of a card called Iberia Plus card as well as presenting such card, whenever you are flying with Iberia and any other companies of the Group Oneworld.

Also the use of the Iberia Plus card is allowed with the following airlines: Lan Chile, Finnair, British Airways, American Airlines, Air Lingus, Cathay Pacific, Quantas, in view of their membership of the Oneworld Alliance.

There is no doubt that most Spaniards and foreigners consumers would identify the "IBERIA PLUS" brand and relate it to the Complainant.

The Iberia Plus program does work not only in Spain but also abroad, in countries such as France, Ireland, Italy, Germany, Austria, Nicaragua, Venezuela, USA, United Kingdom, Denmark, Sweden, Peru, Argentina, Chile, or Colombia to say some of them.

The Complainant has never authorized the Respondent to use the mark IBERIA PLUS, either by granting a license or franchising or in any other way the mark IBERIA PLUS to the Respondent. Therefore the Respondent does not hold any right over the mark IBERIA PLUS.

The web under the domain name <iberiaplus.com> examined with a Public Notary on October 15, 2001, and as observed also by the sole panelist, includes only the term ENCO, and once you click in the link your are addressed to the following site address: <wwwa52.infonegocio.com/435/>.

 

5. Parties’ Contentions

A. Complainant

In addition to the facts accepted by the panelist in the foregoing "factual background", the Complainant states:

There is no doubt that most Spanish users and consumers would immediately identify the "IBERIA PLUS" brand and relate it with the Complainant. The Complainant has been a world-wide pioneer in the development of client loyalty programmes with its Iberia Plus. In eleven years, such programmes have become a major competitive factor for European and American carriers, along with the offer of destinations, schedules and flight frequencies. At the close of 1999, the Iberia Plus frequent flyer programme could boast one million members.

The Respondent lives in Spain and is most probably a Spanish citizen according to his name and address. He lives therefore within the geographical area where IBERIA PLUS is a famous mark and widely promoted and advertised in the media and present in the market, as they are also indeed in the Respondent’s province of residence, in Catalonia.

In view of the lack of Complainant’s authorization to the Respondent for the use of the trademark and in view of the famous and notorious character of that mark, the risk of dilution of the Complainant’s trademark must be carefully examined.

The presumed purpose of the Respondent in registering the domain name object of this Complaint, is to obtain some profit of it through misleading the consumer about the origin of the goods by association or confusion due to the identity of the marks at issue and the identity of the offered and commercialized goods.

When the Claimant became aware of the <iberiaplus.com> domain name, subject of this complaint, a cease and desist letter was sent on October 1, 2001, informing the domain name holder about the legitimate rights of the Complainant to the mark "Iberia Plus", not only because of the titleholding of one mark, but several. The Respondent was requested to transfer such domain name to the Complainant in virtue of the existence of exclusivity trademarks rights.

Such cease and desist letter was answered by the representative of the Respondent on October 25, 2001, requesting some time to answer to the cease and desist letter and to study the matter.

In view of the lack of any other additional response regarding the registration and use of the domain name <iberiaplus.com> the claimant sent a new letter informing the Respondent that no response from the defendant had been received and in due course the Complainant will file a complaint for the enforcement of his rights over the mark IBERIA PLUS.

The use of the domain name <iberiaplus.com> is based on the establishment of a link towards the Respondent’s web page. Therefore, when someone try to enter through the domain name <iberiaplus.com> is addressed to the Respondent’s web company Enco because of the establishing of a web forwarding.

Since the receipt of the cease and desist letter the Respondent has continued on the use of the domain name <iberiaplus.com>; even on January 3, 2002, the forwarding to ENCO page still exists.

The Complainant remarks also the fact that the purchasing of flying tickets and services related to airlines are one of the most common activity developed in Internet. Also an important % number of consumers purchases the flying tickets or any other airline services through Internet more than any other activity. Therefore and in the benefit of the final consumers is important to avoid any confusion such as the one which is being reviewed.

The National Law and the principles of the country law applied when the parties have its residence in the same country. Therefore and in accordance to the present case the application of the Spanish Trademark Act 1988 is pointed out.

International Treaties grant a special protection to well-known trademarks such as the Paris Union Convention (Section 6 Bis 1) and the TRIP’S Agreement on Trade Related Aspects of Intellectual Property.

Also The Spanish Unfair Competition Act 1991, mainly the sections 6, 11 and 12 are applicable.

B. Respondent

The Respondent failed to comply with the deadline indicated in the Notification of Complaint and Commencement of Administrative Proceeding.

 

6. Discussion and Findings

6.1 Applicable rules

Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute:

"A Panel shall 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 seems applicable"

In accordance with Paragraph 14(a) of the Rules,

(a) In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the complaint.

And Paragraph 4(a) of the Policy states that, for a complaint to be granted, the Complainant must prove each of the following:

(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 no legitimate interests in respect of the domain name, and,

(iii) that the domain name has been registered and used in bad faith.

6.2 Absence of a response to the Complaint by the Respondent

In the absence of a response to the Complainants claims by the Respondent, the Panel must consider those claims in the light of the evidence submitted by the Complainant. However the Panel cannot decide in the Complainant’s favour solely given the Respondent’s default but is entitled to draw, and does, such inferences as it feels just from the circumstances of the Respondent’s failure to respond (WIPO Case No. D2000-0277, Deutsche Bank AG v. Diego-Arturo Bruckner; WIPO Case No. D2001-1183, Bodegas Vega Sicilia, S.A. v. Serafín Rodríguez Rodríguez, and WIPO Case No. D2001-1479, Retevisión Móvil, S.A. v. Miguel Menéndez).

Therefore the Panel has to discuss each of the above mentioned requirements of Paragraph 4(a) of the Policy.

6.3 Identity or Confusing Similarity between the Domain Name and a trademark

The Complainant is the owner of 5 trademarks on the name "Iberia Plus" registered in Spain and the same name is registered as european and international trademarks.

It is evident that the domain name <iberiaplus.com> is identical to the trademarks "Iberia Plus". The only differences are the inclusion of the top-level domain "com" in the domain name and the absence of spacing between words. However it has been always considered that the absence of spacing between words is irrelevant when determining identity (ad. Ex., WIPO Case Nos D2000-0098, D2000-0239, D2001-0397, D2001-0773 and D2001-1183).

6.4 Rights or legitimate interests of the Respondent in respect of the domain name

The Respondent has not been licensed, contracted or otherwise permitted by the Complainant, in any way, to use the "Iberia Plus" mark or to apply for any domain name incorporating the "Iberia Plus" mark nor, has the Complainant acquiesced in any way to such application of the "Iberia Plus" mark by the Respondent.

Indeed, at no time, did the Respondent have authorisation to register the domain name <iberiaplus.com>.

The Respondent has not filed any response to the Complaint and, then, has not alleged, as he could, any facts or elements to justify prior rights of legitimate interest in the said domain name <iberiaplus.com>.

Furthermore the web under the domain name <iberiaplus.com> includes only the term ENCO and establishes the link with a site refering to the products and services related to this name ENCO. This fact shows that the Respondent has no legitimate interest in the name iberiaplus, since there does not exist any relation between the names "iberiaplus" and "enco".

Consequently, according to the file, it seems that the Respondent has no rights or legitimate interests in respect of the domain name <iberiaplus.com>, within the meaning of paragraph 4(a)(ii) and (c)(i-iii) of the Policy.

6.5 Possible bad faith in the registration and use of the domain name

The Respondent lives in the same country, Spain, where the trademark Iberia Plus is well-known and highly reputed as related to the services of the leading Spanish airline.

This means that the Respondent knew that he was registering as domain name, without any authorisation, a famous trade mark belonging to another entity. This registration is undoubtly a bad faith registration.

Concerning the use in bad faith, it is clear that when someone has registered a domain name in bad faith and having no legitimate interest on it, it is very unlikely that this domain name may be used in good faith. On the contrary, there is no doubt that someone who has registered a domain name in bad faith and having no legitimate interest on it, will use it in bad faith, given that the assumption of a different solution would be absolutely contradictory. The person that behaves in bad faith by registering a domain name, will use it in bad faith, as bad faith is linked to the knowledge at the moment of the registry by the Registrant of the harm to a third party’s rights, without having a legitimate cause for behaving this way (WIPO Case nos D2000-0239 and D2001-1183).

Furthermore to use the domain name <iberiaplus.com> for advertising a trade mark Enco which has nothing to do with Iberia nor with the services of Iberia Plus shows a use in bad faith, since it creates deliberately confusion among the users and constitutes, at least, a case of taking undue advantage of the reknowned reputation of the trademark "Iberia Plus".

All these circunstances show that the whole behaviour of the Respondent is clearly in bad faith.

 

7. Decision

In light of its finding, the Panel decides that the Complainant has proved, in accordance with paragraph 4(a) of the Policy that each of the three elements contemplated in such paragraph are present and, consequently, the Panel requires that the registration of the domain name <iberiaplus.com> be transfered to the Complainant.

 


 

Alberto Bercovitz
Sole Panelist

Dated: March 11, 2002

 

Источник информации: https://internet-law.ru/intlaw/udrp/2002/d2002-0019.html

 

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