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Sociйtй Air France v. WWW Enterprise, Inc. (173206)
Case No. D2005-1160
1. The Parties
The Complainant is Sociйtй Air France, France, represented by Meyer & Partenaires, France.
The Respondent is WWW Enterprise, Inc. (173206), United States of America.
2. The Domain Name and Registrar
The disputed domain name <airfrancecom.net> is registered with OnlineNic,
Inc. d/b/a China-Channel.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 8, 2005. On November 8, 2005, the Center transmitted by email to OnlineNic, Inc. d/b/a China-Channel.com a request for registrar verification in connection with the domain name at issue. On November 9, 2005, OnlineNic, Inc. d/b/a China-Channel.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact.
The Center verified that 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 November 17, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was December 7, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 8, 2005.
The Center appointed Mr. Frank Schoneveld as the sole
panelist in this matter on December 20, 2005. 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, Sociйtй AIR FRANCE, one of the world’s major airline companies, has used the name AIR FRANCE in commerce, and traces its origins back to 1933. Complainant operates an international web portal at “http://www.airfrance.com” and a corporate website at “http://www.airfrance.net”, and has registered several generic and country code top-level domain names consisting of or incorporating its trademark AIR FRANCE.
Sociйtй AIR FRANCE is the trade name of the Complainant. The Complainant is the registered owner of a large number of trademarks consisting or including the wording “AIR FRANCE” in a great many countries across the world, including in France and the United States where WWW Enterprise Inc. is established:
- “AIR FRANCE”, French nominative trademark n° 1, 703, 113 of October 31, 1991 for all classes of 1957 Nice Agreement, renewed on September 27, 2001;
- “AIR FRANCE” French nominative trademark n° 99, 811, 269 of September 6, 1999 in 32 classes of Nice Agreement and especially in class 38 for Internet services;
- “AIR FRANCE” nominative trademark registered in the United States of America on August 2nd, 1955 under n° 0610072, renewed on August 2, 1995, (pending renewal).
The Respondent, WWW Enterprise Inc. is the registrant, as well as the administrative, technical and billing contact for the disputed domain name <airfrancecom.net>.
The Respondent is not related in any way to the Complainant’s business, is not one of its agents and does not carry out any activity for, or has any business with the Complainant. No licence or authorization has been granted to WWW Enterprise Inc. to make any use, nor apply for registration of the domain name <airfrancecom.net> by sociйtй AIR FRANCE.
In May 2005, the domain name was initially pointing
to an active website, a sort of directory with hyperlinks listed by topics such
as “travel”. By clicking on these hyperlinks, users were directed
to other result pages with hyperlinks pointing to commercial websites, with
products and services offered. Currently, the disputed domain points to other
parking pages in French, largely dedicated to products and services in the field
of tourism and travel.
5. Parties’ Contentions
Complainant contends that its trademark “AIR FRANCE” is well-known throughout the world and easily recognizable as such. Complainant says several Courts of Justice and Administrative Panels have already recognized the well-known character of the trademark “AIR FRANCE”, as did WIPO Arbitration and Mediation Center Panels in previous UDRP cases, including in:
- WIPO Case No.
D2002-0158, regarding <my-airfrance.com>;
- WIPO Case No.
D2004-0239, regarding <airfranceholiday.com>;
- WIPO Case No. D2005-0821,
regarding <crewairfrance.com> and <gpairfrance.com>
As a consequence, it should be indisputably considered that the trademark “AIR FRANCE” owned by the Complainant is not only registered and used in commerce in a great many countries in the world, but is well-known in the sense of Article 6 bis of the Paris Union Convention.
The Complainant claims that the domain name <airfrancecom.net> is confusingly similar to its trademark “AIR FRANCE”. This is because, first, the trademark “AIR FRANCE” is entirely reproduced in the disputed domain name. Second, the domain name combines the Complainant’s famous trademark with the suffix “COM” which stands for the gTld “.com” or the word “commercial” or “communication”.
The Complainant asserts that the combination of the trademark “AIR FRANCE” with the wording “COM” does not eliminate the risk of confusion with Complainant’s famous trademark, which is the only distinctive element of the domain name in dispute. This assertion is supported by certain case law, regarding <airfrancecom.net>, finding that the mere addition of a generic or descriptive term to an otherwise distinctive or well-known trademark does not serve to distinguish the domain name from the Complainant’s trademark.
The Complainant says the risk of confusion is all the more important when the domain name <airfrancecom.net> is pointing to a parking webpage in French in which several hyperlinks are displayed consisting of results exclusively in the field of tourism and travel. Consequently, the Complainant claims that the domain name <airfrancecom.net> is confusingly similar to its trademark “AIR FRANCE”.
The Complainant asserts that the Respondent WWW Enterprise Inc. should be considered as having no rights or legitimate interests in respect of the domain name <airfrancecom.net>. It is said that in similar circumstances, Panels decided that the Respondent had neither rights nor legitimate interests in the domain name.
Complainant states that the Respondent is not currently and has never been known under the name AIR FRANCE, or under the combination of this trademark with the wording COM.
Sociйtй AIR FRANCE claims that the domain <airfrancecom.net> has been registered by WWW Enterprise Inc. to take advantage of the Complainant’s well-known trademark to confuse and divert Internet users to competing websites in the field of tourism and travel through a “pay per click” domain parking solution. This is said to not be a bona fide offering of goods or services under Policy 4(c)(i), or a non-commercial or fair use under Policy 4(c)(iii). An example given is NAF FA132439 TM Acquisition Corp. /. Sign Guards sending users to a website which displayed a series of links, some which were linked to competitors of the Complainant, is not a bona fide offering of goods and services. It is claimed that, as a matter of fact, the Respondent has not engaged in any action that shows he has any right or legitimate interests in the disputed domain name.
Complainant says it is difficult to imagine that the
Respondent could have ignored the well-known trademark “AIR FRANCE”
at the time he applied for registration of the confusingly similar domain name
<airfrancecom.net>, and that, in similar cases, Panels have already decided
that the notoriety of a complainant’s trademark “creates a prima
facie presumption that the respondent registered the domain name for the purpose
of selling it to the Complainant or one of its competitors, or that it was intended
to be used in some way to attract for commercial gain users to the website by
creating a likelihood of confusion with the Complainant’s mark”(WIPO
Case No. D2001-0020 regarding <guinessbeer.com>).
Complainant claims that in registering the disputed domain name, there is no doubt that WWW Enterprise Inc. wanted to refer to the Complainant, and this is also demonstrated by the hyperlinks displayed at the website of the disputed domain <airfrancecom.net>: all these are in the field of tourism and travel.
Complainant submits it is difficult to imagine any good faith purpose for which the Respondent might have registered the domain name <airfrancecom.net> taking into account WWW Enterprise’s other infringing domain name registrations and past litigation.
It is said that the Respondent has registered this domain name precisely because he knew the well-known character of the trademark “AIR FRANCE”, for the only purpose of generating commercial gain by intentionally taking advantage of Internet traffic and diverting Internet users to other websites in the field of tourism and travel through a “pay per click” domain parking solution and so generate revenue.
According to the Complainant, the Respondent has chosen the wording AIRFRANCECOM because most Internet browsers (like FireFox, Safari, Opera and Explorer) are able to reach websites even if the domain name is not entirely keyboarded in the address bar. For instance, the browser can locate a website even if the request does not include the top level domain.
Complainant claims the respondent registered the name <airfrancecom .net> in order to divert Internet users who frequently miss the dot “.” between the name and the top level domain. Complainant considers that it is obvious that the Respondent is intending to obtain material benefits by diluting the fame and renown of the Complainant’s trademarks
Complainant contends that the Respondent’s use of the domain name <airfrancecom.net> constitutes bad faith use.
Complainant submits that any argument in rebuttal
saying that the activity of the domain name was not controlled by him, but due
to a parking program or any other affiliation program, is not admissible. Complainant
argues that it is now established that “even if such use commonly occurs
on so-called “parking” pages, Respondent has a responsibility for
the content Respondent allows to be posted at the site” (example:
NAF Claim N° FA0302000144628 Hewlett Packard Company./. Alvaro Collazo –
WIPO Case No. D2003-0417 Sociйtй AIR FRANCE
./. Alvaro Collazo).
The Complainant also claims that this use of the domain <airfrancecom.net> has to be considered as unfair competition.
Complainant concludes by saying that the Respondent is obviously not making any legitimate non-commercial or fair use of the disputed domain name because such use would mislead consumers by offering competing services, without having acquired any licence or permission from the Complainant, which is the legitimate owner of the trademark “AIR FRANCE”. Consequently, the Respondent is not making any good faith use of the disputed domain name, and for all these reasons, WWW Enterprise Inc. has engaged in bad faith registration and use of the disputed domain name.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
The Policy Rules at paragraph 5(e) provide that:
“If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint”.
There being no response submitted by the Respondent, and no exceptional circumstances, the Panel proceeds to decide the dispute based upon the complaint.
A. Identical or Confusingly Similar
The domain name includes the Complainant’s registered trademark “AIR FRANCE”, together with the letters “COM”. These letters are likely to be considered as referring, in a number of languages read throughout the world (e.g. Spanish, English, French), as an abbreviation of commerce or commercial activity, or a company. The “COM” is also the same as the well-known extension “.COM”, for generic top-level domains.
Where the first nine letters of the domain name are exactly the same as the Complainant’s registered trademark, the mere addition of “COM” does not markedly distinguish the domain name from the trademark. The domain name would confuse an Internet user by allowing him or her to believe there was some commercial, or corporate or Internet connection between the domain name and the trademark “AIR FRANCE”, when there clearly is none. The Panel therefore decides that the domain name is confusingly similar to the trademark AIR FRANCE, a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
There is no evidence the Respondent has any rights or legitimate interests in respect of the domain name. The Complainant asserts, and the Panel accepts, that there is no and has never been, any commercial relationship between Complainant and Respondent which might entitle the Respondent to claim some right or interest in the trademark partly making up the domain name.
There is no evidence the Respondent is commonly known by the domain name (or part thereof).
Given the registration of AIR FRANCE as a trademark in the country of the Respondent’s address, namely the USA, the Respondent can be assumed to know that another person has certain rights in the USA in that trademark. Further, the failure to respond to the assertion that the Respondent has no rights or legitimate interest in the domain name, suggests the Respondent does not have any such rights or interests. Failure to respond to the allegation that his name and address is false, can also suggest he has no such rights or legitimate interest.
In view of all the above factors, their accumulative affect leads the Panel to decide that the Respondent has no rights or legitimate interests in respect of the domain name.
C. Registered and Used in Bad Faith
The Policy at Para 4(b)(iv) provides that evidence of registration and use in bad faith is established if, by using the domain name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of any product or service on the website.
An Internet user is likely to believe that the domain name is one of those of the Complainant’s acting as a commercial entity, or in commerce. Furthermore, the mistaken omission of the dot in “.COM” and entering into the Internet at the disputed domain name, would, given the prominent use of the Complainant’s trademark on the website at the domain, also confuse an Internet user into believing that this website was one endorsed, approved or affiliated with the Complainant.
The Respondent’s website at the disputed domain name refers to airports, airline tickets, travel and the airline ticketing agencies Travelocity, Orbitz and Expedia. As already mentioned, by having Internet users attracted to the website using the domain name, Internet users would be confused because they would assume the website has the sponsorship, affiliation or endorsement of the airline company and carrier AIR FRANCE, the Complainant. This confusion could lead to the Complainant losing potential customers or those customers having to pay higher prices for any services booked through the website itself or a link at the domain name. Further, because of the common practice of “pay per click” it is likely, as alleged by the Complainant, that the Respondent has gained commercially through the website at the domain name.
The Respondent appears then, to be using the domain name to divert consumers from the Complainant’s website, and is doing so for commercial gain. This commercial gain is likely to be for the service providers at the links to which the domain name website points an Internet user. There is also likely to be commercial gain for the Respondent through the common means of “pay per click”, as alleged by the Complainant.
In the absence of any rebuttal or contrary evidence, the Panel concludes that the Respondent has obtained such commercial gain, and has indeed intentionally attempted to attract Internet users to the website for such commercial gain.
It is also clear that the Respondent is offering air travel services through the domain name, and thus is in competition with the Complainant, apparently relying on the confusion of Internet users wrongly thinking the domain name is associated with or endorsed by the Complainant.
Given the above circumstances, the Panel concludes that the terms of the Policy
at paragraph 4(b)(iv) are satisfied, and that the domain name has been registered
and is being used in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and paragraph 15 of the Rules, and following the request of the Complainant, the Panel orders that the domain name, <airfrancecom.net> be transferred to the Complainant.
Frank R. Schoneveld
Date: January 3, 2006