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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
EasyJet Airline Company Ltd v. Mr Tim Holt
Case No. D2000-0465
1. The Parties
Complainant is EasyJet Airline Company Ltd of Easyland, Luton Airport, Bedfordshire, LU2 9LY, United Kingdom, ("Easyjet").
Respondent is Tim Holt. In the complaint his address is listed as 2028 Amity Hill Road, Statesville, North Carolina, USA. In his response he gives his address as 21 Kelsall Close, Locking Stumps, Birchwood, Warrington, WA3 6LZ, Cheshire, United Kingdom. (In this decision the respondent will be referred to as Mr. Holt).
2. The Domain Name and Registrar
The domain name in issue is "easy-jet.com"; the registrar is Network Solutions Inc.
3. Procedural History
The complaint was filed on May 19, 2000. The complaint satisfies all the requirements of the Rules and the Supplemental Rules. It was properly notified to the parties in accordance with the Rules. Easyjet are represented by Mr. Ian Bartlett of Beck Greener, 7 Stone Buildings, Lincoln’s Inn, London. Mr. Holt is representing himself.
The undersigned panelist has submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
The written response of Mr. Holt was submitted by e-mail on June 21, 2000, and a full hard copy was received on June 23, 2000. This was within the deadline of June 24, 2000, imposed by the Center in accordance with the Rules. In his submission Mr. Holt requests a reverse finding against Easyjet in respect of alleged "reverse domain name hijacking". No submission has been received from Easyjet on this issue.
All submissions were duly acknowledged, and the panel was instructed to submit its decision by August 17, 2000.
4. Factual Background
a. The Trademarks
Annex 6 to the Complaint comprises details of Easyjet’s Trademark registrations in a wide variety of countries including UK, USA, Norway, Sweden, France, Germany, Benelux and Switzerland. The Annex discloses that all of these Trademarks are for the name "Easyjet". Most of the applications were made at the time of the incorporation of Easyjet Airlines Ltd in 1995.
In addition Easyjet is the proprietor of a number of domain names at various levels. These are set out at paragraph 20 of the Complaint. Easyjet asserts that 60% of its ticket sales are made through the internet. These domain names appear to have been registered at various times, though the recent registrations featuring a hyphenation of the words "Easy" and "jet" post-date the registration of the domain name in issue by Mr. Holt.
The Trademark registrations are for goods and services predominantly concerned with the provision of air travel and related services.
b. The Complaint
In accordance with the Rules, Easyjet submits that the domain name "Easy-jet.com" is identical to its "Easyjet" Trademarks. It further submits that Mr. Holt has no rights or legitimate interests in respect of the domain name, and that the domain name was registered and is being used in bad faith.
Easyjet has sought to support each aspect of its complaint with background information and accompanying documentation. The "identical" nature of the domain name to its own trade marks, registered and unregistered is supported by trade mark certificates and examples of corporate literature showing the distinctive trading style and names adopted by Easyjet over the five years that it has been trading.
The issue of Mr. Holt’s rights and interests is addressed by reference to his apparent willingness to consider a sale of the Domain Name to Easyjet. Easyjet also point to what they describe as the absence of any evidence to suggest that Mr. Holt conducts or intends to conduct a business in regard to refills for ink jet printer cartridges as he alleges. It appears that their reference to Mr. Holt’s other website, "Findpoetry.com" may also in part be addressed to this issue.
The question of bad faith is addressed by reference to allegations that Mr. Holt used an "alias" ("Tim H"), that he used a false address in the USA, that he used a false address and telephone number in the UK, and that he was willing to consider selling the Domain Name to the complainant. Easyjet allege that as they are the only user of the name "Easyjet" in the UK "or in any other country", the mere registration of the Domain Name in dispute by Mr. Holt, a UK resident who must have been aware of the marketing and promotional activities of Easyjet, constitutes bad faith. Easyjet point to Mr. Holt’s use of an address in the USA (which they allege is false), rather than his UK address, as further evidence of bad faith.
Easyjet further allege that Mr. Holt registered the Domain Name primarily for the purpose of selling, renting or otherwise transferring it to Easyjet, and that he has used the Domain Name intentionally to attract Internet users for commercial gain. The gain in question is alleged to be the sale of the Domain Name to Easyjet.
c. The Response
In his response Mr. Holt denies all the bases of the complaint issued by Easyjet, and seeks to refute the factual basis for the complaint by a series of assertions and documents which comprise the annexes to his response. In particular, Mr. Holt refers to the written evidence of Ms Buffy Hagerman to refute the allegations of bad faith relating to the US address which he has used, and to support his own assertions regarding the proposed establishment of a business providing refills for Ink Jet printer cartridges.
Mr. Holt specifically denies that the claimant has any rights in the hyphenated version of the trading name "easy-jet" and points to previous decisions made under this procedure to illustrate his point. He also points to decisions of the UK High Court in a trade mark case to support his assertions.
In relation to the question of legitimate interests, Mr. Holt asserts that he has a strong and continuing intention to establish a business in the field of supplying replacement refills for ink jet printer cartridges. He exhibits what purports to be evidence of preparation for the establishment of such a business, and seeks corroboration from Ms. Buffy Hagerman in her written testimony.
In relation to the issue of "bad faith" Mr. Holt denies that his intention was to sell the Domain Name to Easyjet. He points out that the only discussion about selling came as a result of an approach by EasyJet to him, and not vice versa. Mr. Holt also asserts that he is the owner of a variety of legitimate websites and lists them in his submission. Further Mr. Holt specifically denies that he is using the site as a means of creating confusion for commercial gain, pointing out that as of now the site is inoperable in any event.
Finally Mr. Holt asserts that the activities of the complainant effectively amount to "reverse hijacking" as he alleges that they are seeking to subvert this procedure in order to gain illegitimate rights to trade marks and names to which they are not entitled.
5. Discussion and Findings
This case presents some very difficult issues for the panel. There are substantial discrepancies in the respective parties’ factual allegations, to an extent which has led the panel to consider seeking further representations from the parties, or even taking the exceptional step of summoning an oral hearing (as permitted under the rules - Rules 12 and 13). However, having given substantial and detailed consideration to all the evidence, the panel believes that it can reach a decision on the basis of the respective parties’ submissions.
Paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy requires the complainant to satisfy the following conditions:
(i) It must demonstrate that the Domain Name is identical or confusingly similar to a trade or service mark in which it has rights.
(ii) It must show that the respondent has no legitimate interest in respect of the domain name.
(iii) It must show that the Domain Name has been registered and is being used in bad faith.
There is assistance to the panel in the Policy guidelines as to how the issue of bad faith might be addressed by reference to indications that the Domain Name was acquired for the purpose of sale at a profit, that the registration was a "spoiling tactic" provided that there is a pattern of conduct to this effect; that there was an intention to disrupt the business of the complainant, and that there has been an intentional attempt to attract internet users to the site for commercial gain through confusion with the complainant’s trading name and style.
The panel will deal with the key criteria in turn:
a. Identity and confusing similarity
Mr. Holt asserts that the Easyjet Trademarks and the Domain Name are identical, pointing to the hyphenation in the Domain Name. He cites UK judicial authority to support his contention that it is possible to register marks which are similar if not identical where the goods and services in question are fundamentally different.
The findings of the panel under this decision are not guided by individual national legal requirements, nor even broad principles of Trademark law. Whilst it is certainly arguable that the process itself recognizes Domain Names as a sui generis right equivalent to trade marks, the fact is that it is a distinctive procedure with its own rules and guidelines. There is no indication in the rules that a panel in an individual case shall be guided by national Trademark laws, nor even by previous panel decisions under this procedure.
Mr. Holt further asserts that the complainant had every opportunity to register the "easyjet" name with hyphenation and chose not to. He asserts that that deprives them of the right to object to his registration of the hyphenated Domain Name. The panel rejects that assertion. Under the rules the panel is entitled to apply such principles of law, as it deems applicable. It is clear that in many jurisdictions Easyjet would have rights in their name which extended to being able to protect it against use in a slightly altered form, for example the common law remedy of "passing off". Easyjet’s failure to register its name in a hyphenated form does not put a fence around its rights, which prevent it from exercising them in this way.
All that the complainant is required to do under this procedure is to demonstrate that the Domain Name is identical or confusingly similar to trade or service marks owned and used by the complainant and in respect of which the complainant has rights. The panel is satisfied that Easyjet have demonstrated that in this case.
b. Rights and legitimate interests
As at the date of this decision the Domain Name still announces itself as inoperable so it is impossible to assess with certainty the state of Mr. Holt’s preparations to use the site for legitimate commercial purposes. The panel is confronted with Mr. Holt’s assertion of his intention, supported by some apparent evidence of preparation, and the statement of Ms. Buffy Hagerman on the one side, and the assertion by Easyjet that there is no evidence of any business being carried on under this name and that any such intention expressed would be a sham, on the other side.
Having given due consideration to the evidence the panel finds that there is some evidence preparation to trade by Mr. Holt and that there are insufficient grounds to doubt Mr. Holt’s version of the facts, and consequently finds that Easyjet have failed to fulfil the necessary second leg of the requirements in the rules, namely showing that Mr. Holt has no rights or legitimate interests in respect of the Domain Name.
In reaching this decision the panel has taken into account the evidence of Mr. Holt’s other Domain Names all of which appear to be legitimate and properly functioning.
c. Bad Faith
The panel can find no evidence of bad faith on the part of Mr. Holt. He has satisfactorily answered the questions concerning addresses which were raised, and the evidence of Easyjet’s private investigator is not considered to be helpful.
It is quite clear that the only consideration of a sale of the Domain Name was prompted by Easyjet itself, and Mr. Holt’s response was consistent with his own version of the facts.
There is nothing to suggest that the Domain Name was registered with any intention to disrupt the business of Easyjet, and there is no apparent history of conduct on the part of Mr. Holt, which would cast doubt on his intentions in relation to this Domain Name.
Mr. Holt is right to point out that the Policy states that the Domain Name must be "being used" in bad faith. However, the panel believes that the expression "being used" does not refer to actual commercial exploitation. The mere existence of the Domain Name can constitute use for these purposes if there is evidence of an attempt to sell in bad faith. As already indicated there is no such evidence in this case.
In the light of the foregoing the panel decides that although the Domain Name in question is potentially confusingly similar to the trade and service marks of Easyjet, Mr. Holt appears to have a legitimate interest in the Domain Name, and that there is no evidence that it was registered or is being used in bad faith.
Accordingly the panel directs that there should be no change in ownership of the Domain Name.
The panel has considered Mr. Holt’s request for a finding of "reverse hijacking" in respect of the conduct of Easyjet both in this procedure, and in its registration of other Domain Names using the hyphenated version of its trading name after the discovery of Mr. Holt’s registration. There is no basis for making any such finding in the rules, or on the facts of this case.
Dated: August 24,2000