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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cathay Pacific Airways Limited v. Mario Koch
Case No. D2002-0318
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, Hong Kong, SAR of China.
The Respondent is Mario Koch of PO Box 190227, Brighton TN 38011, United States of America.
2. The Domain Name and Registrar
The Domain Name is<cathay-pacific.org>.
The Registrar is Dotster Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("the Center") on April 3, 2002. The Center verified that the Complaint satisfies the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the 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 June 7, 2002, the Panel comprising Clark W. Lackert and Nels Lippert, Panelists, and Dawn Osborne, Presiding Panelist, was duly appointed in accordance with Rule 6(e) and the due date for the Panel’s decision was set as June 21, 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 including the United States of America.
The Respondent, based in the United States of America, has not responded to the Complaint.
5. Parties’ Contentions
Submissions in the Complaint include:
The Complainant was founded in 1946 and is an international airline based in Hong Kong, SAR of China. It offers passenger and cargo services to 51 countries worldwide including to New York and Los Angeles in the United States of America. 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, air transportation services around the world including the United States of America. 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.
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. Nothing has been attached to the name except for a Dotster Inc. default page. The Respondent is not commonly known by the name CATHAY PACIFIC and has not been offering goods and services under this name.
The Respondent registered and used the domain name in bad faith. By not evidencing any real intention to put the domain name to a bona fide use, it can only be inferred that the name was registered for the primary purpose of selling to the Complainant or the Complainant’s competitor or otherwise blocking the Complainant from acquiring the domain name.
Sending of emails by the Respondent would cause confusion with any recipients of those emails that the Respondent is somehow connected 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 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 ("the 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 in 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 mark. The Domain Name is confusingly similar to the Complainant’s CATHAY PACIFIC registered mark.
B. Rights or Legitimate Interests of the Respondent
The Respondent has not filed a Response and does not appear to have any rights or legitimate interests in the domain name.
C. Bad Faith
Paragraph 4 (b) of the Policy sets out four non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith:
(i) the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that complainant for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) 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.
There is no evidence that the Respondent has engaged in a pattern of cybersquatting conduct sufficient to satisfy paragraph 4 (b) (ii).
There is no evidence that the Respondent is a competitor of the Complainant sufficient to satisfy paragraph 4 (b) (iii).
There is no evidence that the Respondent has attempted to cause confusion amongst Internet or email users between the Complainant’s mark and any on-line location of the Respondent or any goods and services offered by the Respondent on-line sufficient to satisfy paragraph 4 (b) (iv).
However, given the well known nature of the Complainant’s mark, the Complainant’s long-standing use of the mark and the existence of trade mark registrations for the Complainant’s CATHAY PACIFIC mark in the United States of America where the Respondent is based, the Panel finds it difficult to accept that the Respondent registered the domain name without knowledge of the Complainant’s rights. The Respondent has not put forward any arguments to demonstrate it has any rights or legitimate interests in the domain name and the Panel is entitled to draw appropriate adverse inferences from the failure of the Respondent to submit any Response to the Complaint.
Following the case of Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 the Panel believes that this is an appropriate case to transfer the name despite the fact that this is a case of passive holding or use of the name. The fame of the Complainant’s mark and the failure of the Respondent to respond to the Complaint leads the Panel to believe that the Respondent registered the name primarily for the improper purpose of selling, renting or otherwise transferring the registration to the Complainant or to a competitor of the Complainant for valuable consideration in excess of the Respondent’s documented out-of-pocket costs of registration of the domain name sufficient to satisfy paragraph 4 (b) (i) or the general overriding criterion of bad faith which is not limited to the four strict circumstances listed in paragraph 4 (b).
Accordingly, the Panel finds that the domain name has been registered and used in bad faith.
In the light of the foregoing, the Panel decides that the Domain Name is confusingly similar to the Complainant’s trade mark and 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.org> BE TRANSFERRED to the Complainant.
Clark W. Lackert Nels Lippert
Dated: June 20, 2002