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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Air France v. Kitchkulture
Case No: D2002-0158
1. The Parties
The Complainant is Société Air France, 45 rue de Paris, 95747 Roissy CDG Cedex, France, represented by Meyer & Partenaires, Patent and trademark Agents, Bureaux Europe, 20 Place des Halles, Strasbourg, France.
The Respondent is KitchKulture, 9 rue de l'Yser, 92210 Paris, France.
2. The Domain Name and Registrar
The domain name which is the subject of these administrative proceedings is <my-airfrance.com>.
The registrar of the domain name <my-airfrance.com>is Easyspace International Ltd.
3. Procedural History
On February 18, 2002, the Complaint was received by the WIPO Arbitration and Mediation Center ("the Center") by e-mail and on February 20, 2002, in hard copy.
An Acknowledgement of Receipt of Complaint was sent out by the WIPO Center, dated February 21, 2002.
On February 26, 2002, the Center sent a Request for Verification to Easyspace Ltd and on February 28, 2002, Easyspace responded, confirming that it is the registrar of the domain name <my-airfrance.com>, that the Respondent is the current registrant of the said domain name, that the Uniform Domain Name Dispute Resolution Policy applies to the said registration and that the registration was at that time in active status.
On March 1, 2002, the Center verified, in accordance with Paragraph 4(a) of the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and paragraph 5 of the WIPO Supplemental Rules for Uniform Domain Dispute Resolution Policy ("the Supplemental Rules"), that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Rules and the Supplemental Rules and that payment in the required amount had been made by the Complainant.
On March 1, 2002, the Center sent a Notification of Complaint and Commencement of Administrative Proceeding relating to the registration of the said domain name <my-airfrance.com> to the Respondent. A copy of said Notification was sent to the Registrar and to the Complainant.
As no Response has been received within the permitted period for filing, that is by March 21, 2002, the Center notified the Respondent's default on March 28, 2002.
On April 10, 2002, the Center invited the undersigned to act as Administrative Panel in these Administrative Proceedings, and, after having received a Statement of Acceptance and Declaration of Impartiality from him in accordance with paragraph 7 of the Rules, the Center proceeded to appoint said undersigned as Administrative Panel on April 18, 2002. On the same day the case file was transmitted to the Administrative Panel.
In the view of the Administrative Panel, proper procedures were followed and this Administrative Panel was properly constituted. The Panel has not received any requests from Complainant or Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties. The proceedings have been conducted in English.
4. Factual Background
Because there is no submission from the Respondent, the facts are taken from the Complaint and generally are accepted as true.
AIR FRANCE is one of the world's major airline companies. It is the third largest international passenger carrier and the fourth largest freight carrier. It also ranks second world-wide for aircraft maintenance. AIR FRANCE offers the largest medium-haul network in Europe today in terms of daily flights.
AIR FRANCE is actually operating an international web portal under the uniform resource locator http://www.airfrance.com.
It has also registered several generic and country code top level domain names consisting of, or incorporating the trademark "Air France".
A few weeks ago, AIR FRANCE found out that Respondent had registered the domain name in issue. AIR FRANCE first tried to solve the matter in an amicable way. Through its trademark attorney, AIR FRANCE sent a formal letter on November 27, 2001 asking Respondent to cease and desist from any unauthorised use of the domain name <my-airfrance.com> and to transfer the said domain name to AIR FRANCE.
The Respondent failed to give any response and the Center has no information about the entity called KITCHKULTURE and the domain name's administrative contact Stéphanie Schroeder.
5. Parties’ Contentions
The Complainant submits that :
1) it should be considered that the trademark "Air France" owned by Complainant is not only registered and used in commerce in a great majority of countries in the world, but is also "well-known" in the sense of article 6bis of the Paris Union Convention.
2) the domain name <my-airfrance.com> is appropriating the Complainant's trademark as it is quite identical to the trademark "Air France", visually, phonetically and connotatively and the domain name <my-airfrance.com> registered by Respondent has to be considered confusingly similar to its trademark "Air France".
3) Respondent had no right or legitimate interests in domain name in issue and furthermore, there is no demonstrable use or preparation for use of the domain name in connection with the bona fide offering of goods or services by Respondent.
In consequence, Air France requests the domain name <my-airfrance.com> to be transferred to its own profit.
There is no submission from the Respondent.
6. Discussion and Findings
The following discussion will take place strictly within the frame of Paragraph 4 of the Policy with no regards to the French trademark law i.e. in construing paragraph 4 the Panel notes that:
- the Complainant has the burden of proof in showing that the three elements set out in the provisions listed in paragraph 4(a) are present;
- these three elements are cumulative and not alternative.
A. Has the Complainant rights in the trademark "Air France" ?
As the Complainant has furnished evidence of its ownership and continued use of the trademark "Air France" over sixty-nine years, this Administrative Panel is fully satisfied that it has rights in the said trademark "Air France". As a matter of fact the Complainant has used the mark extensively and the mark has acquired considerable fame and recognition world-wide.
B. Is the domain name <my-airfrance.com> identical or confusingly similar to the trademark "Air France" ?
The domain name <my-airfrance.com> is practically identical to the Complainant’s trademark "Air France" since the sequence of letters "airfrance" is the most conspicuous "sub-string" of <my-airfrance.com>.
As the Complainant points it out on obvious grounds: The Respondent has just added the English pronoun "my" to the Complainant's trademark "Air France", this combination being just separated by a dash (-) ; the mere addition of the word "my" is by no means sufficient to confer a self distinctiveness to the locution "my-airfrance" into the domain name in issue.
Beyond that, should this actual similarity be considered as conducive to a confusion ?
Here the Panel refers to a strikingly similar case previously submitted to the Center (WIPO Case No. D2000-1007) where it was determined that the domain name <mysony.com> was confusingly similar to the Complainant’s trademark "Sony" in the following terms : "The letters "my", to an English language reader, introduce the concept of possessiveness. That which is possessed is the following letters, namely "Sony", which is the Complainant’s trademark. The addition of the letters "my" has the effect of focusing the reader’s attention on the Complainant’s trademark. Accordingly, the Panel considers that a reader of the domain name would be confused into thinking that the domain name is associated with the Complainant".
Clearly, mutatis mutandis, the similarity between "Air France" and "my-airfance" should be addressed the same way.
Eventually, considering :
- first that the trademark Air France, though essentially related to air traffic has been extensively used for many other products and services of general purpose,
- second that the aforesaid products and services are, for a major part of them, available through the web,
the Administrative Panel retains the chances for confusion as a valuable assertion.
C. Has the Respondent rights or legitimate interests in respect of the domain name ?
The panelist, looking for one or more of the circumstances listed in Paragraph 4(c), which are not exclusive but which if are found to be proved are sufficient to demonstrate the Respondent’s rights or legitimate interest to the domain name, assesses that the Respondent did not use or prepared to use the domain name <my-airfrance.com>, before any notice of the dispute, in connection with a bona fide offering of goods or services as total default of any answer is sufficient to prove.
By not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the Domain Name.
D. Has the domain name been registered and used in bad faith ?
Paragraph 4(b) of the Policy sets out - but without limitation - four circumstances which, if found to be present, shall be evidence of the registration and use of a domain name in bad faith.
None of the circumstances listed in paragraph 4(b)(i) to (iii) were found to be proved in the case.
On the contrary the Panel found paragraph 4(b)(iv) quite relevant as it states:
"by using the domain name respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s web site or on the on line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s web site or location or of a product or service on the respondent’s web site or location".
Truly, in the present case, no commercial gain was actually made, but the panelist construes the provision that way : commercial gain is just one of the possible incentives to create a likelihood of confusion with such a mark as the complainant's ; the obvious purpose of the respondent was to get some foreseeable gain out of the confusion, be it commercial or not.
The Administrative Panel decides :
- that the Complainant, for the reasons set out above, has duly proved in accordance with paragraph 4 of the Uniform Policy,
- that the domain name <my-airfrance.com> is confusingly similar to the trademark "AirFrance",
- that KITCHKULTURE has "no rights or legitimate interests in respect of the domain name" and
- that the domain name has been registered and used in bad faith.
In consequence, pursuant to paragraph 3(c) of the Uniform Policy, the domain name shall be transferred to AIR FRANCE.
X. Linant de Bellefonds
Dated: May 9, 2002