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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Koninklijke Luchtvaart Maatschappij N.V. .v. European Travel Network
Case No. D2000-0963
1. The Parties
The Complainant is Koninklijke Luchtvaart Maatschappij N.V. (Royal Dutch Airlines) of Amsterdamseweg 55, 1182 GP Amstelveen, The Netherlands.
The Respondent is European Travel Network with addresses at P O Box 025 216 SJO 1714, Miami, FL 33102-516, United States of America; P O Box 561, Eindhoven, Noord-Brabant, 5600 AN, The Netherlands; and in Costa Rica.
2. The Domain Name and Registrar
The domain name at issue is: "klm.org"
and the Registrar is: "Network Solutions, Inc".
3. Procedural History
The WIPO Arbitration and Mediation Center [the Center] received the Complaint on August 7, 2000, [electronic version] and on August 8, 2000, [hard copy]. The Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy [the Policy], the Rules for Uniform Domain Name Dispute Resolution Policy [the Rules], and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy [the Supplemental Rules]. The Complainant made the required payment to the Center.
The formal date of the commencement of this administrative proceeding is August 18, 2000.
On August 14, 2000, the Center transmitted via email to Network Solutions, Inc a request for registrar verification in connection with this case and on August 17, 2000, Network Solutions, Inc transmitted by email to the Center Network Solution's verification response confirming that the registrant is European Travel Network of Miami and that the contact for both administrative and billing purposes is European Travel Network of Eindhoven.
Having verified that the Complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted on August 18, 2000, to;
this Notification of Complaint and Commencement of the Administrative Proceeding. The Center advised that the Response was due by September 6, 2000. On the same day the Center transmitted by fax and by mail copies of the foregoing documents to:
European Travel Network
P O Box 025 216 - SJO 1714
Miami, FL 33102-516
United States of America
European Travel Network
P O Box 561, Eindhoven
Noord-Brabant, 5600 AN
World NIC Name Host
Network Solutions, Inc
505 Huntmar Park Drive
Herndon, VA 20170
United States of America
On August 29, 2000, the Center advised the Complainant that Paragraph VIII of the Complaint, Mutual Jurisdiction, did not comply with paragraph 3(b) (xiii) of the Rules, which provides that the Complaint must
"(xiii)State that Complainant will submit with respect to any challenges to a decision in the administrative proceeding cancelling or transferring the domain name, to the jurisdiction of the Courts in at least one specified Mutual Jurisdiction."
It was, therefore, necessary for the Complaint to be amended - which it duly was on August 30, 2000, - so as to signify the Complainant's agreement to submit to the jurisdiction of the Courts where the Respondent is located, as shown by the address given for the domain name holder in the concerned registrar's Whois database at the time of the submission of the Complaint to the Center.
No Response was received from the Respondent by the due date of September 6, 2000. However, a Response dated September 5, 2000, was received by the Center on September 10, 2000, and Acknowledgement of Receipt of Response was transmitted to the parties on September 12, 2000. On September 13, 2000, the Complainant drew attention to the fact that the Response should have been filed on September 6, 2000, [paragraph 5(a) of the Rules], that the Respondent failed to copy the Response to the Complainant contrary to paragraph 2(h)(iii)of the Rules and that, pursuant to paragraph 14(b) of the Rules, in the absence of exceptional circumstances the Panel shall draw such inferences as it considers appropriate from Respondent's said failures to comply with the Rules.
Although the Rules refer to exceptional circumstances being necessary to admit a late filed Response [Rules paragraph 5(e)], the Panel shall ensure that the parties are treated with equality and that each party is given a fair opportunity to present its case [Rules paragraph 10(b)]. The Panel shall also ensure that the administrative proceeding takes place with due expedition [Rule paragraph 10(c)]. In this case, it was (as stated above) necessary for the Complainant to amend its Complaint, which it duly did by email and by letter dated August 30, 2000. If time to file Response were calculated from that date, the Response filed September 10, 2000, would have been in due time.
Was the amendment to the Complainant of such a nature to justify the Panel extending time for filing the Complaint by 20 days from August 30, 2000? The answer is probably not. However, the delay in this case was only 4 days, which has not hindered the due expedition of this administrative proceeding. The Panel, therefore, rules that the Response shall be admitted.
Having received on October 4, 2000, Mr David Perkins' Declaration of Impartiality and Independence and his Statement of Acceptance, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr David Perkins was formally appointed as the Sole Panellist. The Projected Decision Date was October 19, 2000. The Sole Panellist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and the Supplemental Rules.
Having reviewed the communication records in the case file, the Administrative Panel finds that the Center has discharged its responsibility under paragraph 2(a) of the Rules "to employ reasonably available means calculated to achieve actual notice to Respondent". Therefore, the Administrative Panel shall issue its Decision based upon the Complaint (as amended), the late filed Response, the Policy, the Rules and the Supplemental Rules.
4. Factual background
4.1 The Complainant
The Complainant is Royal Dutch Airlines, known internationally as KLM.
4.2 The Complainant's Trade Mark
The Complaint identifies the following registered trademarks for services including travel arrangement servicing, advertising, publicity, telecommunications, transport and airline services.
Class(es) of Services
KLM & device
35: 36: 38: 39; & 42
April 1, 1997
United States of America
100; 102; and 105
October 19, 1965
35: 36: 38: 39; & 42
March 1, 1996
KLM & device
35: 36: 38: 39; & 42
March 1, 1996
35: 36: 38: 39; & 42
April 18, 1996
14: 16; & 26
March 5, 1971
4.3 The Complainant's Top Level Domain Names
The Complaint states that KLM intends eventually to offer all of its services through the Internet. Registered gTLDs include;
"klm.com" (registered July 1, 1998):
"klm-affiliates.com": ".net"; and ".org":
"klmaffilates.com": ".net"; and ".org":
"callklm.com": ".net"; and ".org"; and
"klmaz.com": ".net"; and ".org".
The Response also refers to the Complainant's cc TDL registration
"klm.nl" (registered August 30, 1993)
4.3 The Respondent
At Exhibits L and M to the Complaint are extracts from the Respondent's website located at the "www.etn.nl" address. From this it appears that Mr Ad Latjes is the President and driving force behind the Respondent. The King Latjes Magazine, a monthly online newsletter, gives an historical overview of Mr Latjes business activities.
4.4. Those activities are the provision of low cost airfares and in particular offering lower fares to air travellers than are available from the country of departure by means of purchasing in other countries. By way of example, the Newsletter claims that air fares by KLM from Amsterdam to Nigeria cost ca. NIG 3000 in 1992, whereas fares offered by KLM in London for the same route were ca. NIG 2000.
4.5 Mr Latjes claims to have been the first travel agent offering discounted air fares when he started in business in 1971. He appears to have been based in Amsterdam and to have concentrated a campaign against the Complainant's practice of charging higher prices on tickets purchased in Holland than tickets for the same route purchased in another country. His campaigns have also centered on similar pricing practices alleged against Singapore Airlines and Virgin.
4.6 In 1989 Mr Latjes founded the Respondent in response to a demand for a network of discounted hotels to complement discounted air fares. The Respondent launched what it claims to be Europe's first Travel Card which has over 9,000 participating hotels, restaurants, car rentals, shops and travel agents in 185 countries.
4.7 In May 1995 Mr Latjes opened his website as providing an ideal infrastructure for his worldwide network of agents and accommodation. That website used an Internet Service Provider in Holland.
4.8 In 1996 the Respondent received the European Commission's Award for the best travel site in Europe. In 1997 Yahoo Magazine termed the Respondent's Discount Airfares Home Page
"Without question, the mother lode of resources for finding cheap fares."
4.9 In 1997 the Respondent and another of Mr Latjes companies, Malibu, closed their offices in Amsterdam and opened a virtual online office including a worldwide toll-free telephone number. In 1999 the Respondent claims that its flights booking engine became capable of searching for the lowest fares simultaneously in the online databases of many different, independent travel agents and the published fares of more than 500 airlines. Mr Latjes now refers to his operations as being located in the Silicon Jungle of Costa Rica.
4.10 In March 1999 the Respondent registered the following domain names which are identical to the registered trademarks of other airlines, namely:
"Martinair.org" and ".net"
"Transavia.org" and ".net"
"Singaporeair.org" and ".net"
The Martinair and Transavia domain names are the subject of WIPO Cases D2000-0964 and 0965 which are also before this Panel.
4.11 The Complaint shows that the Respondent has connected its King Latjes Magazine site [paragraph 4.3 above] to the domain name in issue.
4.12 Other Legal Proceedings between the Parties
On March 20, 2000, the Complainant sent a cease and desist letter to the Respondent requesting transfer of the domain name in issue. Summary proceedings against the Respondent were then brought by the Complainant in Holland on April 13, 2000. However, the Complainant discovered that the Respondent and its related companies seemed to have dissolved their presence in Holland; this is consistent with the content of the King Latjes Magazine referred to in paragraph 4.9 above. Even certified mail sent to the Eindhoven P O Box address was returned unopened. The Complainant, therefore, decided that it was pointless suing in Holland and terminated the action on May 4, 2000.
5. Parties' Contentions
5.1 A. The Complainant
The Complainant contends that the Respondent has registered as a domain name a mark which is identical to the Complainant's mark, that the Respondent has no rights or legitimate interests in respect of that domain name and that the Respondent has registered and is using that domain name in bad faith.
B. The Respondent
The Respondent contends that:
● The Complainant has abandoned any claim in respect of the domain name in issue as a result of registering "klm.nl" in August 1993 and "klm.com" in July 1998 and failing to take any steps to register "klm.org" by the time the Respondent registered it in March 1999. The Respondent refers to US cases - but without specifying any - which apparently support this abandonment theory.
● The Complainant is a Dutch based corporation and ".nl" domains were created for use of corporations in The Netherlands. By comparison, the Respondent is US [Miami] based and the ".com"; ".net"; and ".org" gTLDs were created for use by companies in the United States.
● Taking somewhat of a contradictory stance, the Respondent then seeks to bolster his abandonment theory by pointing to the "klm.net" domain name being in the ownership of a Third Party, not KLM.
● Then returning to the territorial theme, the Respondent points to the fact that the Complainant is adequately served through its existing domain name registrations. The Respondent, "a global player in the travel business with customers in 125 countries" only uses "www.etn.nl".
6. Discussion and Findings
6.1 The Policy paragraph 4a provides that the Complainant must prove each of the following;
● that the Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
● the Respondent has no rights or legitimate interests in respect of the domain name; and
● the domain name has been registered and is being used in bad faith.
6.2 Identical or Confusingly Similar
The Response does not deny that the domain name is identical to the Complainant's KLM mark. The Panel is satisfied that the Complainant owns the KLM mark, that the domain name is identical to that mark and, consequently, that the Complainant meets the requirements of paragraph 4a(i) of the Policy.
6.3 Rights or Legitimate Interests
Paragraph 4c of the Policy identifies circumstances which, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all the evidence presented shall demonstrate the Respondent's rights or legitimate interests for the purposes of paragraph 4a(ii) of the Policy.
6.4 There is nothing in the Response to indicate that the Respondent falls within any of the circumstances identified in paragraph 4c of the Policy. Rather the reverse. The Respondent states that, even though it is "a global player in the travel business with customers in 125 countries", it only uses the "www.etn.nl" domain name [paragraph 5B above]. Connecting its King Latjes Magazine monthly newsletter site to the domain name in issue [paragraphs 4.3 and 4.11 above] does not create rights or legitimate interests for the purposes of paragraph 4c of the Policy.
6.5 The Panel can find no evidence that would tend to establish that the Respondent has rights or a legitimate interest in respect of the domain name in issue. The Complainant has not licensed or otherwise permitted the Respondent to use the KLM mark or to apply for or use any domain name incorporating that mark. The Panel does not accept the Respondent's abandonment theory in this respect. The Complainant, therefore, succeeds in establishing the requirements of paragraph 4(a)(ii) of the Policy.
6.6 Registered and Used in Bad Faith
Paragraph 4b of the Policy sets out 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". These circumstances are not exhaustive of the circumstances indicating registration and use in bad faith.
6.7 Registration in Bad Faith
The Respondent's case is based on two propositions. First, the abandonment theory, which (as already stated in paragraph 6.5 above) this Panel does not accept. Second, that ".com", ".net" and ".org" TLDs are designed for use only by companies located in the United States, so that the Respondent has every right to register the domain name in issue. This proposition is manifestly incorrect. In the Panel's view the Respondent has shown no basis for finding that it had any good faith reason for registering the domain name in issue.
6.8 Used in Bad Faith
The Respondent has stated that it only uses the "www.etn.nl" domain name for its global travel business [paragraphs 5B and 6.4 above]. In its own monthly newsletter the Respondent chronicles its history of disputes with the Complainant, KLM. Against that background it is perhaps not unreasonable to conclude that, registration of the domain name in issue coupled with use of the same blue colour for the King Latjes Magazine banner as that used by KLM for many years, was primarily for the purpose of disrupting the business of the Complainant with whom the Respondent competes. Further, the Complainant's KLM trademark is known worldwide and it is difficult to conceive of any use of that mark by the Respondent that could be legitimate and not actionable under the Complainant's trademark rights and/or under consumer protection legislation.
6.9 The Panel, therefore, finds that the Complainant has succeeded in fulfilling the third leg of the requirements under paragraph 4a of the Policy.
For all the foregoing reasons, the Panel decides that the Complainant has satisfied each of the three elements of paragraph 4a of the Policy. Accordingly, the Panel requires that the registration of the domain name "klm.org" be transferred to the Complainant.
Dated: October 24, 2000
1. First use in the United States dates from 1943 in respect of air transportation services.