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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Sociйtй AIR FRANCE v. Geiser Enterprises

Case No. D2008-0024

 

1. The Parties

The Complainant is Sociйtй AIR FRANCE, Roissy CDG, France, represented by MEYER & Partenaires, France.

The Respondent is Geiser Enterprises, Las Vegas, Nevada, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <softcoreairfrance.com> is registered with GoDaddy.com, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 7, 2008. On January 7, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the domain name at issue. On January 7, 2008, GoDaddy.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. 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 January 15, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was February 4, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 5, 2008.

The Center appointed Richard Tan as the sole panelist in this matter on February 15, 2008. 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 well known major international airline company and has its origins leading back to 1933. It has used the trade name Societe AIR FRANCE in commerce since 1933. It is also the registered owner of a large number of trademarks which consist of or include the words AIR FRANCE throughout the world, including French trademarks No. 1,703,113 of October 31, 1991 and No. 99,811,269 of September 6, 1999 and US trademark No. 0610072 of August 2, 1955, renewed on August 2, 1995. Various WIPO UDRP decisions have recognized the protection enjoyed by the Complainant in the aforesaid trademark, including Sociйtй Air France v. Spiral Matrix, WIPO Case No. D2005-1337; Sociйtй Air France v. Alvaro Collazo, WIPO Case No. D2004-0446; Sociйtй Air France v. Alvaro Collazo, WIPO Case No. D2003-0417; Sociйtй Air France v. Kitchkulture, WIPO Case No. D2002-0158 and Sociйtй AIR FRANCE v. Ted Chen, WIPO Case No. D2007-0528.

The Complainant also operates an international web portal at “www.airfrance.com” and owns the domain name <airfrance.com>, which incorporates its AIR FRANCE trademark.

The Respondent registered the disputed domain name <softcoreairfrance.com> on August 15, 2007. The disputed domain name resolves to a website containing links to pornographic material.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends as follows:

(a) The disputed domain name is confusingly similar to the Complainant’s AIR FRANCE trademark and in fact entirely reproduces the AIR FRANCE trademark. Although the disputed domain name combines the Complainant’s trademark with the terms or words “softcore”, the addition of those words does not eliminate the risk of confusion with the Complainant’s trademark which is the only distinctive element of the disputed domain name. The prefix “soft core” is an expression used to denote a form of pornography that is less explicit than hardcore pornographic material (and the Complainant cites material in Wikipedia in support of this meaning.)

The Complainant cites several decisions in which the panels noted that the mere addition of a generic or descriptive term to an otherwise distinctive or well-known trademark does not serve to distinguish the relative domain name from that trademark:

Sociйtй Air France v. Patrick Ory, WIPO Case No. D2003-0628 in respect of <airfranceairlines.com>;

Sociйtй Air France v. Domain Active Pty Ltd., WIPO Case No. D2004-0993 in respect of <airfrancereservations.com>; and

Sociйtй AIR FRANCE v. Ted Chen, WIPO Case No. D2007-0528, in respect of <airfrancebooking.info>.

(b) The Complainant asserts that the Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain name as it 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 it. The Respondent is also not currently and has never been known by the name AIR FRANCE and has not been granted any licence or authorisation by the Complainant to the use or registration of the disputed domain name.

The Complainant contends that the Respondent registered the disputed domain name in order to take advantage of the Complainant’s well-known “Air France” trademark and to confuse and divert Internet users to pornographic advertised websites. The Complainant submits that such use is not a bona fide offering of goods or services under paragraph 4(c)(i) of the Policy, nor is it a non-commercial or fair use under paragraph 4(c)(iii) of the Policy. The Complainant further contends that the Respondent has not engaged in any action that shows it has any right or legitimate interest in the disputed domain name.

(c) The Complainant contends that the Respondent has registered and is using the disputed domain names in bad faith. The Complainant contends that the Respondent must obviously have known of the Complainant’s famous trademark and reputation at the time of registration of the domain name and the only reason for the choice and use of that trademark was to generate commercial gain by intentionally taking advantage of internet traffic and diverting internet users to pornographic advertised websites. These facts showed bad faith registration and use of the disputed domain name.

B. Respondent

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

 

6. Discussion and Findings

The Complainant has the burden of proving each of the following three elements under paragraph 4(a) of the Policy in order to be entitled to a transfer of the disputed domain name:

(i) that the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) that the Respondent’s domain name has been registered and is being used in bad faith.

The Respondent is required under the Rules to submit a Response to the Complaint within twenty days of the date of commencement of the administrative proceedings. In the event of a failure to submit a Response, Rule 5(e) provides that absent any exceptional circumstances, the Panel is to decide the dispute “based upon the complaint.” Paragraph 14(b) further provides that if a party, in the absence of exceptional circumstances, fails to comply with any provision of the Rules, the Panel is entitled to “draw such inferences” from the Respondent’s failure to comply with the Rules “as it considers appropriate.”

As the Respondent has not submitted a Response, and there having been no exceptional circumstances brought to the attention of the Panel, in accordance with paragraph 5(e) of the Rules, this Panel is entitled to decide the dispute based on the Complaint and to accept as true the factual averments of the Complaint for the purposes of these proceedings: Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009.

The Respondent’s default, however, does not lead to an automatic ruling in favour of the Complainant. The burden remains on the Complainant to establish, on a balance of probabilities, the requirements of the Policy: World Wrestling Federation Entertainment, Inc. v. Michael Bosman, WIPO Case No. D1999-0001; Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Digital Vision, Ltd v. Advanced Chemill Systems, WIPO Case No. D2001-0827.

A. Identical or Confusingly Similar

The Complainant is required under paragraph 4(a)(i) of the Policy to prove that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. Considering the Complainant’s registered trademarks, the nature and long history of the Complainant’s business the Panel finds that the Complainant has established rights in its AIR FRANCE trademark.

The disputed domain name is not identical to the Complainant’s trademark in that it contains the prefix “softcore”. The addition of the descriptive term “softcore” which denotes a form of pornography does not in the Panel’s view distinguish the domain name from the trademark bearing in mind the famous and distinctive nature of the Complainant’s mark. The generic top level domain “.com” may also be disregarded as generic. The Panel therefore finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy, a Respondent may establish its rights or legitimate interests in a disputed domain name, among other circumstances, by showing any of the following elements:

“(i) before any notice to you [Respondent] of the dispute, your use 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial 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 Respondent has not filed a Response to the Complaint. It has not demonstrated that it has any rights or legitimate interests in the disputed domain name. The Complainant asserts that the Respondent has no such rights or legitimate interests and is not related in any way to the Complainant’s business and that the Complainant has granted no licence or authorisation to the Respondent to make any use or apply for registration of the disputed domain name.

The Complainant asserts that the disputed domain name has been registered by the Respondent in order to take advantage of the Complainant’s well-known trademark to confuse and divert internet users to commercial pornographic websites. The Complainant asserts that this use is neither a bona fide offering of goods or services under paragraph 4(c)(i) of the Policy, nor a non-commercial or fair use in terms of paragraph 4(c)(iii) of the Policy.

In the absence of a Response, the Panel accepts that the purpose of the Respondent having registered the Domain Name was to rely on the fame of the “AIR FRANCE” mark to divert users to the Respondent’s pornographic website.

There is established authority that a respondent’s registration and use of a domain name for a pornographic website generally does not constitute a bona fide offering of goods or services pursuant to paragraph 4(c)(i) of the Policy: Yahoo! Inc. v. Denis Jalbert, NAF Case No. FA166020 (“Resolving the disputed domain names to an adult oriented website is evidence that [r]espondent’s use of the disputed domain names is neither a bona fide offering of goods or services pursuant to Policy, paragraph 4 (c)(i) nor a legitimate noncommercial or fair use pursuant to Policy, paragraph 4(c)(iii).”); Yahoo! Inc. v. Christopher L. Hannah d/b/a DailyCrossword.com, NAF Case No. FA250785 (holding respondent’s use of the disputed domain name for a pornographic website “has a tendency to tarnish Complainant’s mark and thus is not a bona fide offering of goods or services”).

In the circumstances, the Panel finds that the Complainant has discharged the burden of establishing that the Respondent has no rights or legitimate interests in respect of the domain name, and that accordingly, paragraph 4(a)(ii) of the Policy has been satisfied.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy provides that the Complainant must, in addition to the matters set out above, further demonstrate that the disputed domain name has been registered and used in bad faith.

Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances which “if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith”, namely:

(i) circumstances indicating that you [the Respondent] have registered or you have 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location.

The Complainant asserts that given the fame of its AIR FRANCE mark, there is no question that the Respondent had knowledge of the Complainant’s rights in the same when it registered the domain name, and the Respondent was thus acting in bad faith.

Further, it can be inferred that the Respondent used the disputed domain name to intentionally attract, for commercial gain, internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s famous AIR FRANCE mark. The Respondent’s pornographic website has also tarnished the Complainant’s trademark.

The Respondent has not submitted any evidence to rebut the Complainant’s claims.

Registration of a domain name with knowledge of the trademark owner’s rights has been consistently found to constitute bad faith under the Policy: See, e.g., Kabushiki Kaisha Toshiba d/b/a Toshiba Corporation v. Liu Xindong, WIPO Case No. D2003-0408 (finding the respondent registered the disputed domain name in bad faith because it had notice of the complainant’s rights); Yahoo! Inc. v. Kelvin Pham, NAF Case No. FA109699).

Further, registration of the Complainant’s widely known mark as a domain name could not have been for any plausible reason other than to trade on the goodwill of the trade mark owner: Telstra Corporation Limited. v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Yahoo! Inc. v. Yahoo-Asian Company Limited, WIPO Case No. D2001-0051, and this would evidence bad faith, particularly where the use is in connection with a pornographic site: Florists’ Transworld Delivery, Inc. v. Domain Strategy, Inc., NAF Case No. FA113974 (finding respondent’s use of the disputed domain name for a pornographic website constituted bad faith under paragraph 4(b)(iv) of the Policy); General Electric Company v. Basalt Management, WIPO Case No. D2000-0925 (finding bad faith in respondent’s use of the disputed domain name because respondent “clearly saw a commercial benefit to be gained by using the [c]omplainant’s trade mark and in a manner (namely connected to a pornographic site) which could only tarnish the distinctiveness and repute of the trade mark.”); Yahoo! Inc. v. Moldes Matrices y Diseno, NAF Case No. FA133764 (finding bad faith in respondent’s use of the disputed domain name for a pornographic website).

In the circumstances, the Panel finds that the domain name has been registered and is being used in bad faith by the Respondent within the meaning of paragraph 4(a)(iii) of the Policy.

 

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 <softcoreairfrance.com> be transferred to the Complainant.


Richard Tan
Sole Panelist

Date: February 29, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0024.html

 

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