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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Sociйtй Air France v. Ahmetovnuri, Ahmet Nuri

Case No. D2006-1527

 

1. The Parties

The Complainant is Sociйtй Air France, Roissy, France, represented by Meyer & Partenaires, Strasbourg, France.

The Respondent is Ahmetovnuri, Ahmet Nuri, United Kingdom of Great Britain and Northern Ireland.

 

2. The Domain Name and Registrar

The disputed Domain Name <airfrancereservation.info> is registered with RegisterFly.com, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 30, 2006. On November 30, 2006, the Center transmitted by email to RegisterFly.com, Inc. a request for registrar verification in connection with the Domain Name at issue. On December 15, 2006, RegisterFly.com, Inc. 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, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 10, 2007, stating that in accordance with paragraph 3(b)(xiii) of the Rules the Complainant will submit with respect to any challenges that may be made by the Respondent to a decision of the Administrative Panel to transfer or cancel the Domain Name, to the jurisdiction of the courts at the location of the domain holder’s address as shown for the registration of the Domain Name in the Registrar’s Whois database at the time the Complain was submitted to the Center. 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 January 15, 2007. In accordance with the Rules, paragraph 5(a), the due date for response was February 4, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 6, 2007.

The Center appointed Dr. Andrea Jaeger-Lenz as the sole panelist in this matter on February 21, 2007. 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 following facts and statements have been established on the basis of the Complaint and the documents attached to the Complaint in accordance with paragraph 3(b)(xv) of the Rules.

The Complainant is a well known French airline with worldwide operations. The Complainant has registered AIR FRANCE and several combinations of AIR FRANCE, sometimes including the term “reservation” in different countries including Great Britain, France and the United States as trademarks as well as domain names under generic top-level domains and country code top-level domains.

The Complainant is, inter alia, the registered proprietor of the following trademarks:

AIR FRANCE, French trademarks No. 1 703 113 of October 31, 1991, registered in all classes and No. 99 811 269, registered on February 18, 2000, in classes 3, 4, 5, 6, 8, 9, 11, 12, 14, 16, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42;

AIR FRANCE, U.S. trademark No. 610 072, registered on August 2, 1955, in international class 39;

AIR FRANCE, British trademarks No. 1 137 848, registered on July 28, 1980, in class 16, No. 1137847, registered on July 28, 1980 in class 12 and No. 1289050, registered on October 1, 1986 in class 39;

AIR FRANCE, Community trademark No. 002 528 461, registered on October 7, 2003, in classes 6, 8, 9, 12, 14, 16, 18, 19, 20, 21, 24, 25, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45.

These trademarks are extensively used by the Complainant with the goods and services of the registered classes.

In addition to these trademarks, the Complainant is registrant of the domain names <airfrancereservation.com>, registered on June 6, 2006, and valid until July 5, 2007, and <airfrancereservations.com>, registered on March 9, 2005, and valid until June 8, 2008. Furthermore, the Complainant is operating an international web portal at ”www.airfrance.com”.

The Domain Name <airfrancereservation.info> was registered on August 12, 2006.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that each of the three requirements specified in paragraph 4(a) of the Policy is satisfied in this case. In particular, the Complainant claims that:

(i) The Domain Name in dispute is confusingly similar to the trademark AIR FRANCE in which the Complainant has rights.

The Complainant claims that the disputed Domain Name reproduces the AIR FRANCE trademark in its entirety.

Further, the Complainant contends that the Domain Name combines the trademark AIR FRANCE with the suffix “reservation”, which is commonly used in relation with airline companies to indicate the possibility to book tickets. The Complainant also provides online reservation services for its customers through many of its websites.

The Complainant states that the combination of the trademark AIR FRANCE with the wording “reservation” in the Domain Name <airfrancereservation.info> does not eliminate the risk of confusion with the Complainant’s trademark AIR FRANCE, which is the only distinctive element of the Domain Name in dispute. On the contrary, the Complainant concludes that this combination suggests that the Domain Name <airfrancereservation.info> refers to the Complainant.

The Complainant further states that the risk of confusion with the trademark AIR FRANCE is heightened by the fact that the Complainant is registrant of the Domain Names <airfrancereservation.com> and <airfrancereservations.com>.

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name in dispute.

The Complainant states that the Respondent is not related in any way to the Complainant’s business. He is no agent and does not carry out any activity for, or has any business with it. Further, the Complainant itself has never granted a licence or authorization to the Respondent to make any use, or apply for registration of the Domain Name <airfrancereservation.info> by the Complainant.

The Complainant contends that the Respondent is not currently and has never been known under the wording “Air France” nor “Air France Reservation” Furthermore, the Respondent has not engaged in any action that shows he has any right or legitimate interests in the Domain Name in dispute.

The Complainant states also that the Domain Name has been registered by the Respondent in order to take advantage of the Complainant’s well-known trademark and to disrupt its business.

(iii) The Domain Name in dispute was registered and is being used in bad faith.

The Complainant contends that the Complainant’s trademark is used in commerce in great majority of countries in the world and, therefore, widely known. It has a strong reputation. Thus, the Respondent could not have ignored it at the time he applied for registration of the Domain Name in dispute.

The Complainant concludes that the Respondent has registered the Domain Name in dispute because he knew the well known character of the trademark AIR FRANCE and wanted to refer to the Complainant.

The Complainant contents that the Respondent’s passive holding of the Domain Name in dispute constitutes bad faith use. The Respondent is not making any good faith use of the disputed Domain Name. On the contrary, the Domain Name points to an error page.

Furthermore, the Complainant contends that he tried to settle the matter in an amicable way by sending a cease and desist letter to the Respondent, to which the Complainant did not receive any answer, but only a non-delivery warning.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that the following facts must be established in order to grant the Complainant a remedy:

(1) that the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and

(3) that the Domain Name has been registered and is being used in bad faith.

According to paragraph 14(a) of the Rules, in case of failure of the Respondent to provide a response to the allegations of the Complainant, the Panel is directed to decide the administrative proceeding on the basis of the Complaint. According to paragraph 14(b) of the Rules the Panel “shall draw such inferences there from as it considers appropriate” (also stated in Ermenegildo Zegna Corporation, Lanificio Ermenegildo Zegna & Figli S.p.A., Consitex S.A. and Ermenegildo Zegna Espaсa S.A v. Ocxon Media S.A., WIPO Case No. D2001-0128; Tarjeta Naranja S.A. v. MrDominio.com and Alejandro San Jorge, WIPO Case No. D2001-0295).

A. Identical or Confusingly Similar

The disputed Domain Name <airfrancereservation.info> contains the Complainant’s trademark AIR FRANCE, which is registered in the United States of America and the European Union. Only the space between “air” and “france” is missing in the disputed Domain Name. However, this omission is insignificant in the context of domain names (see Tia Carrere v. Steven Baxt, WIPO Case No. D2005-1072). Therefore, the first part of the Respondent’s Domain Name is identical with the Complainant’s trademark.

The second part “reservation” of the Domain Name in dispute is a merely generic term with only descriptive character. The term indicates only that a reservation service might be available under this Domain Name. It is well established that the addition of a generic term may not serve alone to distinguish a domain name from a trademark (see Sanofi-Aventis and Aventis Pharma SA v. Advent Innovations, WIPO Case No. D2005-0377; Viacom International Inc. v. Frank F. Jackson and Nancy Miller, WIPO Case No. D2003-0755; Sociйtй Air France v. RBlue, WIPO Case No. D2005-0290). The Panel sees no reason to deviate from the prevailing opinion. The use of the generic term “reservation” is rather suitable to reinforce the association of the Domain Name with the Complainant’s trademark than to create a distinction. The more so as the part “reservation” associates with the business of the Complainant, in which the word “reservation” is commonly used to direct the customer to booking services. Further, the Complainant has also registered similar domain names, namely <airfrancereservation.com> and <airfrancereservations.com>.

It is also well established that a generic top-level domain, in this case “.info” must be excluded from consideration as being a generic or functional component of the domain name (see Ruby’s Diner, Inc. v. Joseph W. Popow, WIPO Case No. D2001-0868).

For all these reasons, Internet users are likely to believe that the Respondent’s Domain Name and an eventual website associated with it is related to the Complainant’s business, associated with, or authorized by the Complainant.

Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant asserts that the Respondent is not related in any way to the Complainant’s business and the Respondent has not been authorized, licensed or otherwise allowed to make use of the Domain Name and/or of the trademark AIR FRANCE. The Complainant further asserts that the Respondent does not make any legitimate noncommercial fair use of the name.

The Complainant’s allegations remain uncontested. The Respondent has not provided any evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right or legitimate interest in the Domain Name in dispute. Further, the Respondent does not appear to have been known under the wording “Air France” or “Air France Reservation”.

As the Domain Name leads to an error page, such use can not be considered as a legitimate non-commercial or fair use of the Domain Name in the factual circumstances of this case, see below section 6.c.

Based on the case file and in the absence of a rebuttal by the Respondent, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

According to paragraph 4(a)(iii) of the Policy, the Complainant must prove the registration as well as the use in bad faith of the disputed Domain Name.

The Panel is familiar with the Complainant and its services independently from this procedure and is satisfied with the Complainant’s allegations that AIR FRANCE is, due to extensive use in numerous countries, a widely known trademark. Bearing this in mind, it appears most unlikely that, at the time of the domain registration in August 2006, any trader or person could choose to use or register a domain name wholly incorporating AIR FRANCE without being aware of the Complainant’s rights in this trademark. In particular, the trademark AIR FRANCE was registered and has been used since 1980 in the United Kingdom where the Respondent appears to reside.

Thus, the Panel is convinced that the Respondent was well aware of the Complainant’s trademark and domain names. This leads to the conclusion that the Respondent has in all likelihood intentionally chosen the Domain Name to attract, for commercial gain, Internet users to his website and that, therefore, the Domain Name in dispute has been registered by the Respondent in bad faith.

Considering whether the disputed Domain Name is being used in bad faith, paragraph 4(b) of the Policy enumerates several factors, that if found by the Panel to be present, shall be evidence of the use of a domain name in bad faith.

“Use in bad faith” does not only mean “positive action in bad faith”, but also “acting in bad faith” (see Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003). “Use in bad faith” is, therefore, not limited to positive actions, but can result from inaction of the respondent under certain circumstances (see Sociйtй Air France v. Vladimir Federov, WIPO Case No. D2003-0639).

The Domain Name in dispute points to an error page. As mentioned before, the Respondent has not come forward with any right or legitimate interest in the Domain Name in dispute. In the absence of any rights or legitimate interests, the registration and the passive holding of the Domain Name <airfrancereservation.info> can be said to disrupt the Complainant’s business (see Sociйtй Air France v. Vladimir Federov, WIPO Case No. D2003-0639).

The finding of the Panel that the Respondent has acted in bad faith is strengthened by the fact that the Respondent’s contact details seem to be incorrect. As specifically noted in the Policy, the circumstances of bad faith are not limited to those named in paragraph 4(b). Providing false and misleading contact information in connection with the registration of a domain name also further indicates bad faith in registration and use (see Lincoln Property Company v. LPC, WIPO Case No. D2001-0238; Home Director, Inc. v. HomeDirector, WIPO Case No. D2000-0111).

The Complainant tried to settle the matter amicably by sending a cease and desist letter through its representatives to the Respondent’s e-mail account on November 10, 2006. The Complainant did not receive any answer, but a failure notice informing that the addressed mailbox was inactive.

Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(iii) of the Policy.

 

7. Decision

For all foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <airfrancereservation.info> be transferred to the Complainant.


Andrea Jaeger-Lenz
Sole Panelist

Dated: March 7, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1527.html

 

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