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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cathay Pacific Airways Limited v. Orcom Communication
Case No. D2002-0317
1. The Parties
The Complainant is Cathay Pacific Airways Limited of 8th Floor, North Tower, Cathay Pacific City, 8 Scenic Road, Hong Kong International Airport, Lantau, SAR of China.
The Respondent is Orcom Communication of 48 Hanesieim, Petah-tikva, Israel 49550.
2. The Domain Name and Registrar
The Domain Name in dispute is <cathay-pacific.com> (the "Domain Name") and the Registrar of the Domain Name is Bulk Register.com located at 10 East Baltimore Street, Suite 1500, Baltimore, MD 21202, United States of America.
3. Procedural History
The Complaint was filed by email on April 3, 2002. The WIPO Arbitration and Mediation Center ("Center") verified that the Complaint satisfies the ICANN Rules for Uniform Domain Name Dispute Resolution Policy ("Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("Supplemental Rules") and that payment was properly made. The panelists are satisfied this is the case.
The Complaint was properly notified in accordance with the Rules, Paragraph 2 (a) and no Response was filed by the Respondent. The Respondent is in default.
The Complainant elected to have the dispute decided by a three member Administrative Panel and on July 5, 2002, the Panel comprising Professor Mayer Gabay and Clark Lackert, Panelists and Dawn Osborne, Presiding Panelist was duly appointed in accordance with Rules Paragraph 6(e) and the due date for the Panel's decision was set as July 19, 2002.
4. Factual Background
The Complainant is the owner of the famous trade mark CATHAY PACIFIC and owns registrations for this mark for, inter alia, transportation services by air, in many countries worldwide. The Complainant has used the CATHAY PACIFIC mark for over 50 years.
The Respondent, based in Israel, registered the Domain Name on October 6, 1999, and has allegedly attached it to web pages relating to car rental. The Respondent has not responded to the Complaint and is in default.
5. Parties’ Contentions
Submissions in the Complaint include:
The Complainant was founded in 1946 and is an international airline based in Hong Kong. It offers passenger and cargo services to 51 countries worldwide including to New York and Los Angeles in the USA. It carries approximately one million passengers a month and is listed on the Hong Kong stock exchange.
The Complainant has registered the mark CATHAY PACIFIC in respect of, inter alia, transportation services around the world including air transportation and car rental. It has used and advertised the mark extensively throughout the world for over 50 years. As such it contends that the public associates the mark CATHAY PACIFIC exclusively with the Complainant and it is a well known mark.
The Complainant registered <cathaypacific.com> on September 15, 1995, and has operated its web site from this domain name since early 1996.
The Domain Name is virtually identical to the CATHAY PACIFIC trade mark or service mark.
The Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent is not commonly known by the name CATHAY PACIFIC.
The Respondent registered and used the Domain Name in bad faith. It has attached a web page with a title "cars-rental" to the Domain Name. A search using the Google.com search engine brings up the Respondent’s site as tenth after 9 sites connected to or referring to the Respondent.
The name/mark CATHAY PACIFIC is an invented mark and is not a term commonly used in the daily English language. It cannot be a mere coincidence that the Respondent has chosen the Domain Name as the address for its web site. It is obvious that the Respondent is riding on the reputation of the Complainant and using the Domain Name which is identical to the Complainant’s mark deliberately in order to attract, for commercial gain, Internet users to the Respondent’s web site or other on line locations by creating a likelihood of confusion with the Complainant’s mark as to the source of the Respondent’s web site.
Sending of emails by the Respondent would cause confusion with any recipients of those emails that the Respondent is somehow connected to or authorized by the Complainant.
The Respondent failed to respond to the letter before action and follow up letter sent to it by the Complainant.
The Respondent has deliberately registered the Domain Name in order to cause confusion that the Respondent is in some way connected with the Complainant so as to divert business from the Complainant to another on-line location.
The Respondent has not filed a Response and is in default.
6. Discussion and Findings
According to Paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy ("Policy"), the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The Domain Name has been registered and is being used in bad faith.
A. Identical or Confusing Similarity
The Domain Name consists of the Complainant’s well known CATHAY PACIFIC mark with a hyphen between the two words making up the mark. Use of the hyphen between the two words does not serve to distinguish the Domain Name from the Complainant’s well known mark. The Domain Name is confusingly similar to the Complainant’s CATHAY PACIFIC registered and well known mark.
B. Rights or Legitimate Interest of the Respondent
The Respondent has not filed a Response and does not appear to have any rights or legitimate interest in the Domain Name.
C. Bad Faith
Paragraph 4(b) of the Rules sets out four non exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including:
"(i) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location."
The Domain Name consisting of the famous and well known mark of the Complainant has allegedly been used to hyperlink to a site regarding car rentals with no connection to the Complainant. The Complainant is in the business of transportation services and has many registered trade marks covering car rental services. The Respondent has not submitted a response to deny the assertions of the Complainant or to explain its action. Accordingly, the panel is entitled to draw inferences from this lack of response. Such as it is likely that the Respondent has intentionally attempted to attract for commercial gain Internet users to its web site or other on-line location, by creating confusion as to the source, sponsorship, affiliation or endorsement of its products or services. The Panel, therefore, finds that bad faith has been demonstrated under Paragraph 4(b)(iv) of the Policy.
In the light of the foregoing, the Panel decides that the Domain Name is confusingly similar to the Complainant’s well known trade mark and that the Respondent has no rights or legitimate interests relating to the Domain Name which was registered and used in bad faith.
Accordingly, in the light of the above, the Panel requires that the registration of the Domain Name <cathay-pacific.com> BE TRANSFERRED to the Complainant.
Clark W. Lackert Professor Mayer Gabay
Dated: July 17, 2002