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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
National Air Traffic Services Limited v. Lost in Space SA
Case No. D2003-0193
1. The Parties
The Complainant is National Air Traffic Services Limited, One Kemble Street, London WC2B 4AP, United Kingdom of Great Britain and Northern Ireland, represented by Kate Gregory of United Kingdom of Great Britain and Northern Ireland.
The Respondent is Lost in Space SA, C/O David Tate, 1200 Juami 111, Palma de Mallorca, ESP 70015 of Spain.
2. The disputed domain name and Registrar
The disputed domain name <nationalairtrafficservices.com> is registered with Intercosmos Media Group d/b/a directNIC.com.
3. Procedural History
The Original Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 7, 2003. On March 10, 2003, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the disputed domain name at issue. On March 10, 2003, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response, that the Respondent was not listed as the registrant and provided the contact details for the administrative, billing, and technical contact of the (current) registrant. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 17, 2003. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 19, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was April 8, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 10, 2003.
The Center appointed Tobias Cohen Jehoram as the sole panelist in this matter on April 17, 2003. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant is a provider of a number of air traffic services in the UK and around the world. The Complainant has operated for over 30 years under the name "National Air Traffic Services" and has developed a substantial reputation and goodwill in that name as a result. The Complainant is the owner of the device and wordmark "NATS NATIONAL AIR TRAFFIC SERVICES" (registration number 1462967) in the UK in class 39 for air navigation services and air traffic control services, since April 30, 1991.
The Complainant currently operates websites at "www.nats.co.uk" and "www.ais.org.uk". The Complainant has registered, or is in the process of registering, permutations of the name "National Air Traffic Services" in the ".biz" and ".info" top level domains as well as various second level domains.
The Complainant became aware of the disputed domain name sometime towards the end of January 2003. The domain name was then registered by Telmex Management Services ("Telmex"). Helen Bradbury is Telmex's administrative and technical contact. On January 23, 2003, the Complainant sent a letter by e-mail to Helen Bradbury at Telmex, requesting that the disputed domain name immediately be transferred to the Complainant. Helen Bradbury acknowledged receipt of the letter by e-mail of January 23, 2003, and offered to sell the disputed domain name to the Complainant for Ј1,500. On February 3, 2003, the Complainant sent a second letter by e-mail to Helen Bradbury, declining Telmex 's offer to sell the disputed domain name and repeating the Complainant's request that the disputed domain name immediately be transferred to the Complainant. Helen Bradbury acknowledged that the Complainant was not willing to purchase the disputed domain name on February 3, 2003, and stated that Telmex would sell the disputed domain name to a third party.
According to WHOIS databases, the disputed domain name was still registered by Telmex on March 6, 2003. The Complainant filed a complaint against Telmex with WIPO on March 7, 2003, (the "Original Complaint"). On or about March 13, 2002, the disputed domain name was registered by Respondent. On or about March 16, 2003, the disputed domain name was registered by Easyspace. On March 17, 2003, the Registrar placed the disputed domain name on registrar lock and corrected the contact information to appear as it did on March 10, 2003. The disputed domain name was thus again registered by Respondent on March 17, 2003.
At some date after March 6, 2003, the disputed domain name was pointed to a website at "www.temptationsatwork.com", which includes content and pictures of an adult nature. A printout of this web page gave the web page reference as "http://temptationsatwork.com" rather than "http://www.nationalairtrafficservices.com". However, at March 19, 2003, a printout of this web page gave the web page reference as "http://moviehaven.org", also showing content and pictures of an adult nature. This was still so on April 16, 2003.
5. Parties’ Contentions
The Complainant claims that the disputed domain name is identical or confusingly similar to the Complainant's trademark and/or service mark. The disputed domain name consists of the trademark "NATS NATIONAL AIR TRAFFIC SERVICES" from which the acronym "NATS" (which stands for National Air Traffic Services) has been removed. The omission of the acronym "NATS" from the disputed domain name does not serve to distinguish the disputed domain name from the trademark. The disputed domain name is, therefore, confusingly similar to the "NATS NATIONAL AIR TRAFFIC SERVICES" trademark.
The Complainant submits that the Respondent does not have any legitimate interests or rights in the name "NATS NATIONAL AIR TRAFFIC SERVICES". The Respondent is not commonly known by these words nor the disputed domain name. Further, the Respondent is not associated, connected with or authorized by the Complainant in any way and never has been.
The Complainant alleges that the disputed domain name was registered and is being used in bad faith. This claim of bad faith is based on the following:
(i) the circumstances surrounding the purported transfer of the disputed domain name to the Respondent are questionable. The Complainant submits that the purported transfers of the disputed domain name were undertaken by Respondent, Easyspace and Telmex with full knowledge of the commencement of the WIPO complaint proceedings and with the aim of disrupting, obstructing and undermining the complaint process.
(ii) Easyspace’s contact details. The Complainant discovered on March 16, 2003, that neither the address nor the postcode of Easyspace (by whom the disputed website was registered at that time) are listed in the Royal Mail’s address database for UK addresses. The Complainant submits that the apparent invalidity of Easyspace's postal address is further evidence of the Easyspace's bad faith and intent to disrupt and undermine the complaint process.
(iii) the relationship between the Respondent, Easyspace and Telmex. The Complainant refers to the decision in Wachovia Corporation v. Organised Crime, Inc. (WIPO Case No. D2002-0362, June 13, 2003) where the Administrative Panel made the following finding:
"It appears that [Organized Crime, Inc], Stealth Commerce, Lost in Space, and a fourth entity named Telmex Management Services, all appear to be controlled by the same individual or individuals, who may or may not be Helen Bradbury (Respondent's Administrative Contact), Juan Miguel, Mark Townsend, Marlies Bilham, or Antoine Rousseau. This consortium of individuals and seemingly non-existent entities appears to be engaged in a complex scheme of obtaining domains based on others' trademarks and linking them to websites advertising escort services."
The Complainant also refers to the decision in Softbank Corporation v Omniscience (a.k.a. Stealth Commerce a.k.a. Lost in space, SA, a.k.a. Telmex management services, Inc. a.k.a. Organized Crime, Inc., a.k.a. Bilham solutions) (WIPO Case No. D2002-0868, November 4, 2000). In this case the complainant listed 17 cases involving various incarnations of the "consortium of individuals" identified in the Wachovia Corporation case (WIPO Case No. D2002-0362) mentioned above.
In addition, in the Softbank Corporation case (WIPO Case No. D2002-0868) the first incarnation of the respondent was Stealth Commerce that was listed at the same address as that given for Telmex in this Complaint. The Administrative, Billing and Technical Contacts were all identified as Robert Thorpe, with the same e-mail address as that given by the Respondent in this case.
On the basis of these cases, Complainant finds it reasonable to infer that the Respondent is controlled by the same individual or individuals as Easyspace and Telmex.
This inference is further underlined in this case by the fact that: (i) the contact telephone/fax numbers for Telmex and the Respondent are the same; (ii) the Domain server details for the disputed domain name have remained unchanged throughout despite the purported transfers of the disputed domain name first to the Respondent and then to Easyspace; (iii) the "Record last updated 07-17-2002 10:20:43 AM" details from the WHOIS database has also remained unchanged throughout, despite the purported transfers of the disputed domain name and apparent updates of the WHOIS database with the new registrant details; and (iv) Telmex had previously pointed the disputed domain name to a website at "www.temptationsatwork.com". Although the disputed domain name no longer appears to be pointing to this website, the Complainant has identified three recent cases where various disputed domain names registered by the Respondent were pointed to exactly the same website (Volvo Trademark Holding AB v. Lost in Space, SA (WIPO Case No. D2002-0445, August 1, 2002); Compagnie Generale des Etablissement MICHELIN v. Lost in Space, SA (WIPO Case No. D2002-0504, August 1, 2002); and Fleetboston Financial Corporation v. Juan Miguel/Lost In Space, SA (WIPO Case No. D2002-0558, September 16, 2002).
(iv) the activities of the previous registrant, Telmex. On the basis that the Respondent, Easyspace and Telmex are controlled by the same individual or individuals, the Complainant submits that the activities of Telmex should also be taken into account when considering bad faith.
To this end, the Complainant submits that the disputed domain name has been registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant at a price of Ј1500, a price disproportionate to Telmex's out of pocket costs directly related to the registration of the disputed domain name (Snapple Beverage Corp. v. Telmex Management Services, WIPO Case No. D2002-0114, April 22, 2002).
Furthermore, Telmex's use of the disputed domain name to deliberately redirect a user of the website to another website which has no connection at all with the Complainant and contains material likely to cause damage to the reputation and goodwill of the Complainant constitutes bad faith (Doctor.Ing.h.c. F.Porche AG v. Stonybrook Investments Limited, WIPO Case No. D2001-1095, October 26, 2001).
By registering and using the disputed domain name, Telmex has intentionally attempted to attract for commercial and/or financial gain Internet users, via the redirection from "www.nationalairtrafficservices.com" to its website at "www.temptationsatwork.com", by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of Telmex’s website.
The Respondent did not reply to the Complainant’s contentions. However, J. Turpin, Easyspace's administrative and technical contact, stated to the Center by two e-mails of March 19, 2003: "We have recently purchased the said domain, but our WHOIS information has not been updated? What's going on?" and "We purchased the domain last week from Lost in Space SA??? Please explain."
6. Discussion and Findings
Respondent has defaulted. In accordance with paragraph 14 of the Rules, the Panel shall proceed to a decision on the complaint and shall draw such inferences therefrom as it considers appropriate.
According to paragraph 4 a., the Complainant must prove that each of the following three elements are present.
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The disputed domain name is confusingly similar to Complainant's word and devicemark NATS NATIONAL AIR TRAFFIC SERVICES. First, the most distinctive element of the trademark, as registered, is the element NATS NATIONAL AIR TRAFFIC SERVICES. The only difference between this element and the disputed domain name is the absence of the abbreviation of the trade name of the Complainant, National Air Traffic Services; "NATS". The deduction of this (small) part of the trademark, that obviously stands for an abbreviation of NATIONAL AIR TRAFFIC SERVICES, does not detract from the confusing similarity of the disputed domain name.
Respondent has no rights or legitimate interests in respect of the disputed domain name. Respondent has not shown any circumstance nor has provided any reason why it should be using the indication National Air Traffic Services. In fact, the domain name is only used to divert the public to a website featuring sexual overtones, without any connection to National Air Traffic Services.
The undisputed statements and documents, submitted by Complainant, and the WIPO decisions that Complainant referred to, prove that Respondent has registered and uses the disputed domain name in bad faith. The Panel finds that the following factors particularly constitute the bad faith of the Respondent:
(i) the transfers of the disputed domain name between Respondent, Telmex, and Easyspace, after the notification of a WIPO Complaint by Complainant, indicate that the transfers are merely of an administrative nature and are solely used to avoid WIPO proceedings;
(ii) Respondent, Telmex, and Easyspace (if these are existing entities at all) seem to be controlled (or at least used as a trade name) by the same persons. These persons use these entities or trade names (apparently) with the primary purpose of selling the disputed domain name to Complainant in excess of Respondent's out-of-pocket costs;
(iii) also, Respondent uses the disputed domain name to intentionally attract, for commercial gain, Internet users to its website(s), by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of their website.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <nationalairtrafficservices.com> be transferred to the Complainant.
Tobias Cohen Jehoram
Date: May 8, 2003