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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Gulf Air v. American Global Trading Network

Case No. D2007-0438

 

1. The Parties

The Complainant is Gulf Air, of Bahrain.

The Respondent is American Global Trading Network, of New York, United States of America.

2. The Domain Name and Registrar

The disputed domain name <flygulfair.com> is registered with Register.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 22, 2007. On March 23, 2007, the Center transmitted by email to Register.com a request for registrar verification in connection with the domain name at issue. On March 26, 2007, Register.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 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 April 30, 2007. The Center verified that the Complaint together with the amendment to the Complaint (together referred to as “the Complaint” below) 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 May 1, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 21, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 22, 2007.

The Center appointed James A. Barker, Angelica Lodigiani and Sandra A. Sellers as panelists in this matter on June 12, 2007. The Panel finds that it was properly constituted. Each member of 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.

On June 21, 2007, the Panel issued a Panel Order. The Panel Order noted that the Complaint did not explicitly set out its case against each of the elements of paragraph 3(b)(ix)(2) and (3) of the Rules. The Complainant was invited to provide further argument and evidence in relation to those grounds, and the Respondent invited to indicate whether it wished to file a further statement in response. By the date indicated in the Panel Order, the Complainant filed further brief statements, essentially reiterating the brief additional statements made in its amended Complaint. The Respondent made no response to the Panel Order.

 

4. Factual Background

The following facts are taken from the Complaint, and were not contested.

The Complainant was founded in 1950 and is the national airline of the Kingdom of Bahrain and the Sultanate of Oman. With its fleet of 34 aircrafts and its partner airlines, it currently serves nearly 70 destinations in the Middle East, Asia, Europe, Africa, the United States of America and Australia.

The Complainant has a registered trademark for GULF AIR in a number of countries, including in the United States of America where the Respondent resides.

The Complainant operates websites at “www.gulfair.com” and “www.gulfairco.com”, through which it offers services and related information.

At the date of this decision, the disputed domain name does not revert to an active website.

 

5. Parties' Contentions

A. Complainant

The Complainant notes that the disputed domain name incorporates its GULF AIR trademark, along with the word “fly” that directly refers to the Complainant's main activity of air transport.

The Complainant suggests that the disputed domain name was registered by the Respondent with the intent of either taking advantage of its brand name popularity, thus generating confusion, or selling it.

The Complainant cannot foresee any legitimate use of the disputed domain name by the Respondent.

The Complainant states that it intends to use the disputed domain name to reinforce its online presence by referencing it to its main website.

B. Respondent

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

 

6. Discussion and Findings

For the Complaint to succeed, under paragraph 4(a) of the Policy, the Complainant must prove that:

(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 was registered in bad faith and is being used in bad faith.

The Complainant must prove each of these three elements, which are discussed in turn as follows.

A. Nature of the Complaint

Before turning to these three elements under paragraph 4(a) of the Policy, the Panel notes that it has reached conclusions in relation to this case, on the basis of all the information available to it, and the reasonable inferences that may be drawn from the Complainant and the lack of a Response.

The Panel makes this observation because the Complaint itself is relatively brief, is not extensively argued, and provides limited evidence.

A complaint of this kind is at higher risk that a panel will make a finding against it, either for lack of evidence or lack of argument, or both. This is because the overall onus under paragraph 4(a) of the Policy and paragraph 3(b)(ix) of the Rules, is on the Complainant to make its case.

In particular, paragraph 4(a) of the Policy requires the Complainant to assert, in compliance with the Rules, each of the elements set out in that paragraph. Paragraph 3(b)(ix) of the Rules requires that a complaint shall “describe, in accordance with the Policy, the grounds on which the Complaint is made”, including the manner in which the domain name is identical or confusingly similar to the Complainant's mark, and why the Respondent should be considered as having no rights or legitimate interests, and having acted in bad faith. Paragraph 3(b)(ix) clearly requires that these should be substantive assertions of the grounds of the Complaint, including “the manner in which” the disputed domain name is identical or confusingly similar to a mark in which the Complainant has rights, and “why” the Respondent should be considered as having no rights or legitimate interests and as having acted in bad faith.

The Panel also notes previous panel decisions denying complaints on the basis, at least in part, that the complainant failed to expressly make allegations that the respondent contravened elements of paragraph 4(a) of the Policy (see DR. S.A. v. aunomdelarose.com, WIPO Case No. D2001-0666).

The Complainant has not made a detailed case under the elements required under paragraph 4(a) of the Policy. In accordance with paragraph 10 of the Rules, the Panel has, however, drawn reasonable inferences from the Complaint. The Complaint sets out statements that self-evidently relate to the elements of paragraph 4(a) of the Policy, even though not explicitly set out in that way. Accordingly, the Panel finds that the Complainant has made a sufficient case, as required by the Rules.

B. Identical or Confusingly Similar

The Complainant clearly has a trademark in relation to GULF AIR, including that mark as registered in the United States of America where the Respondent resides. The Complainant provided evidence of its registered rights in the United States of America, as well as numerous other countries. The Complaint otherwise comprised only limited statements, which were outlined above under the Factual Background and the Parties' Contentions. . In relation to this element of the Policy, the Complainant's argument was simply that “it is quite evident that the domain name <flygulfair.com> makes explicit reference to both our registered brand name 'Gulf Air' and our industry ('fly')”.

It is self-evident that the disputed domain name wholly incorporates the Complainant's mark with the addition of a generic word ('fly'). As such, the disputed domain name is not identical to the Complainant's mark.

However, the Panel finds that it is confusingly similar. The addition of the word 'fly' does not diminish the confusing similarity with the Complainant's mark.

One reason is that, because that word relates to the field of the Complainant's business, it is more likely to strengthen the confusing similarity.

A second reason is that the word 'fly' is merely generic. It is well-established that a domain name which wholly incorporates a trademark may be confusingly similar to that trademark for purposes of the Policy, despite the addition of common or generic words. (See, for example: Dr. Grandel GmbH v. Drg Randel Inc., WIPO Case No. D2005-0829; Microsoft Corporation v. J. Holiday Co., WIPO Case No. D2000-1493; Playboy Enterprises International, Inc. v. Hector Rodriguez, WIPO Case No. D2000-1016).

For these reasons, the Panel finds that the Complainant has established this first element of the Policy.

C. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out three illustrative circumstances any of which, if established by the Respondent, demonstrate its rights to or legitimate interests in a disputed domain name for purposes of paragraph 4(a)(ii) of the Policy. Those circumstances are that:

(i) before any notice to the Respondent of the dispute, the use by the Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) the Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or

(iii) the Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The Complainant's argument on this second ground is that “We cannot foresee any legitimate use of the domain by the Respondent”. The Panel has inferred, from this statement, that the Complaint is arguing that the Respondent could not demonstrate any of the grounds in paragraph 4(a)(ii) of the Policy, nor any other evidence of a right or legitimate interest.

The overall consensus of previous decisions under the Policy is that a Complainant establishes this element by making out a prima facie case against the Respondent. (See Overview of WIPO Panel Views on Selected UDRP Questions, item 2.1.) The Panel finds that the Complainant has established a prima facie (or sufficient) case against the Respondent.

The burden then shifts to the Respondent to rebut that case.

However, the Respondent has made no response. The Panel also notes that the Respondent also made no response to the Panel Order, even though it might have been obvious, from the fact of the Order being made, that the Complaint was not as strong as it could have been. As such, the Respondent has failed to rebut the prima facie case against it.

In addition, there is no other evidence from the case file that the Respondent might have a right or legitimate interest in the disputed domain name. There is no evidence that the Respondent might be commonly known by the domain name, including any of the evidence available from the WhoIs details for the registration. As the domain name does not lead to an active website, there is no available evidence of the Respondent's intention in registering the domain name. The finding of bad faith against the Respondent (as outlined under that heading below) is also a factor supporting, in these circumstances, a finding that the Respondent has no relevant rights or legitimate interests.

The Panel also has taken into account that the Complainant has a large number of registered marks, including in the jurisdiction in which the Respondent apparently resides.

For all these reasons, the Panel finds that the Complainant has, on balance, established this second element.

D. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four alternative circumstances in which bad faith may be found. Each of those circumstances requires, or implies, that a respondent must have known, or ought to have known, of a complainant's rights.

In this case, the nature of the disputed domain name is itself suggestive that the Respondent was aware of the Complainant and its mark. This is because the disputed domain name combines the Complainant's mark with a generic term ('fly') readily associated with the Complainant's business. It seems unlikely that this combination was chosen by accident by the Respondent. The Complainant also provided substantial evidence of its registered marks in a number of jurisdictions. As far as the Panel can judge, the Complainant's trademark appears to be relatively widely known.

For these reasons, the Panel finds that the Complainant has established this third element under the Policy.

For completeness, the Panel notes the Complainant's allegations that the disputed domain name was registered either for sale, or to take advantage of the Complainant's mark. Although not explicitly stated, the Panel has inferred from this statement that the Complainant is making an allegation of bad faith against the Respondent on these grounds.

Despite these allegations, there is no evidence that the disputed domain name was registered either for sale to the Complainant (or any other person), or to profit from the goodwill in the Complainant's mark. The Complainant provided no such evidence. Nor is there any other evidence from the case file in this respect. However, for the reasons set out above, such evidence is not necessary, taking into account the nature of the disputed domain name, and the failure of the Respondent to rebut the natural inferences that the Panel has drawn from its lack of response.

7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <flygulfair.com>, be transferred to the Complainant.

___________________________

James A. Barker

Presiding Panelist

______________________

Angelica Lodigiani

Panelist

______________________

Sandra A. Sellers

Panelist

Date: July 3, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0438.html

 

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