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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

EasyGroup IP Licensing Limited v. Amjad Kausar

Case No. D2003-0012

 

1. 1. The Parties

The Complainant is EasyGroup IP Licensing Limited at The Rotunda, 42/43 Gloucester Crescent, London NW1 7DL, United United Kingdom of Great Britain and North Ireland, and represented by Norton Norton Rose at Kempson House, Camomile Street, London, EC3A 7AN, United Kingdom of Great Britain and North North Ireland.

The Respondent is Amjad Kausar, whose address is P.O. Box No. 5706, Karachi 74000, Pakistan.

 

2. 2. The Domain Name and Registrar

The domain name in dispute is <wwweasyjet.com>, registered with eNom, Inc., at 16771 NE 80th Street, Suite#100, Redmond, WA 98052 United States.

 

3. Procedural History

This proceeding is to be resolved under the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the World Intellectual Property Organization ("WIPO") Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the  "Supplemental Rules").

the Uniform Policy for Domain Name Dispute Resolution (the "Policy") and Rules (the "Rules") approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999 and the World Intellectual Property Organization Arbitration and Mediation Center’s Supplemental Rules for Uniform Domain Name Dispute Resolution (the "Center", the "Supplemental Rules").

The Complaint was filed with the WIPO Arbitration and Mediation Center ("the  Center") on January 7, 2003, by e-mail, and on January 9, 2003, in hard copy. On January 7, 2003, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On January 14, 2003, eNom transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details for administrative, billing and technical contact. On January 13, 2003, in response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint. On January 16, 2003, the Center verified that the Complaint, together with the amendment to the Complaint, satisfied the formal requirements of the Policy, the Rules and the Supplemental Rules.

In accordance with the Rules, Paragraph 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commencted on January 16, 2003. In accordance with the Rules, Paragraph 5(a), the due date for the Response was February 5, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’’s default on February 6, 2003.

The Center appointed Ms. Hong Xue as the sole Panelist in this matter on February 13, 2003. The Panel finds that it was properly constituted and appointed in accordance with the Rules and the Supplemental Rules. 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.

The language of the proceeding is English, as being the language of the domain registration agreement, pursuant to Paragraph 11(a) of the Rules, and also in consideration of the circumstances of this administrative proceeding and to the fact that there is no express agreement to the contrary by the parties.

 

4. Factual Background

The Complainant is a number of a group of associated companies with the uniform house branding style and identity. Each member trades under and by reference to marks prefixed by "EASY". The easyGroup company—easyJet Airline Company Limited—has been an operator of a commercial passenger airline since 1995, and trading under and by reference to the mark "EASYJET". The trademark "EASTJET" has been registered in Benelux, France, Germany, Malta, Mexico, Norway, Sweden, Switzerland, United Kingdom and United States. By an agreement dated ecember 5, 2000, easyJet assigned all its trademarks, applications and registrations therefor to the Complainant and was granted an exclusive license for the same in return. Since 1998, easyJet has begun the use of "e-commerce" technique in its airline business via its website at "<www.easyjet.com>." The Complainant has registered and uses various domain names, incorporating some version of its trademark (such as <wwweasyjet.net> or <www-easyjet.com>), to assist its efforts in offering services on the Internet.

The Respondent is listed as the Registrant of the disputed domain name. The record of registration was created on September 15, 2001.

 

5. The Parties’’ Contentions

A. Complainant’’s Contentions

The Complainant is a number of a group of company name the "easyGroup" which operates its corporate website at <www.easygroup.co.hk>. The easyGroup member companies are connected by a common founder, share ownership, business ethos and a uniform house branding style and identity; each member trades under and by reference to marks prefixed by "EASY". The first easyGroup company—easyJet Airline Company—was founded in 1995. Easyjet has at all times been an operator of a commercial passenger airline trading under and by reference to the mark EASYJET. Since November 2000, the Complainant has acted as the central holder and administrator of the intellectual property rights owned by the easyGroup companies and the EASY brand. By an agreement dated November 5, 2000, easyJet assigned all its trademark and applications and registrations therefor to the Complainant and was granted an exclusive license of the same in return. The Complainant is therefore the legal owner of the trademark registrations together with all unregistered rights in the EASYJET mark. easyJet sells its seats direct to the consumers and the primary medium for sales (as well as advertisement and promotion) is theis the Internet and therefore central to easyJet’’s commercial strategy is its website "<www.easyjet.com"> which has been active since at least 1998. By the summer of 2000, on-line reservations had increased to an average of about 80% of the airline’’s total reservation.

It’’s clear, therefore, that easyJet enjoys a very high profile in media and the Complainant’’s mark EASYJET is very well-known in the UK, Europe and beyond. The Complainant has taken precaution of registering more than 1,700 domain names related to easyJet’’s businesses, such as <wwweasyjet.net> or <www-easyjet.com>.

The Complainant is the proprietor of numerous trademark registrations in the mark EASYJET in Benelux, France, Germany, Malta, Mexico, Norway, Sweden, Switzerland, Untied Kingdom and United States. The trademark registrations are predominantly concerned with the provision of air travel and transportation and related travel goods and services. By the reason of the extensive use, promotion and advertising of the easyJet and the Complainant are the proprietors of a substantial goodwill and reputation in the use of the said mark in the field of aviation, travel and leisure and in particular, in services offered and delivered by means of the Internet.

The disputed domain name is in all material respects identical and is confusingly similar to the Complainant’’s trademark EASYJET and the easyJet’’s website "<www.easyjet.com"> visually, phonetically and connotatively. The Complainant asserts that the Respondent’’s registration and use of the disputed domain name represent the most blatant form of typo-squatting.

The disputed domain name was registered on September 15, 2001. When accessed the website at the disputed domain name, it resolves as follows:

(a) the user is presented with a bare, unloaded page for a website entitled "VIP Fares" but which comprises a pop-up window informing the user that it has won "Virtual Reality Casino". The window invites the user to click on "OK".

(b) if the user selects "OK", a further window opens which displays a website entitled "Winners play casino and sportsbook" and hosted at "<super-casino.com>," which offers the Internet gambling services.

(c) if the user attempts to close that window, the page is programmed so that a "trap" effect occurs, a further window opens displaying another Internet gambling website entitled "Club Dice Casino" and located at domain name <clubdicecasino.com>.

(d) if the user selects "cancel" at stage (b) above, then the pop-up window closes and the full VIP Fares site loads. The VIP Fares site appears to offer flight, car rental and accommodation booking services.

The Complainant submits that the Respondent has not rights or legitimate interests in respect of the disputed domain name. The Complainant has not authorized, licensed or otherwise consented to the Respondent’’s use of its trademark EASYJET and nor would it be likely to do so. The Complainant’’s attorney conduct world-wide "watch-services" against registered and unregistered marks which are confusingly similar to the Complainant’’s marks and which are used by parties other than the Complainant or its licensees. Such searches have indicated that easyJet is the only organization in the world known under the mark EASYJET. The Complainant therefore believes that the Respondent is not and never has been known by the disputed domain name or the mark EASYJET. Even if the Respondent had accrued any rights in the mark EASYJET since registration of the disputed domain name it is clear that these would be predated by the Complainant’’s by a number of years.The Respondent has made no attempt to make honest, bona fide commercial or non-commercial use of the disputed domain name. The Respondent’s use of the disputed domain name is intended to mislead the Complainant’s and/or easyJet’s customers and divert them to services from which the Respondent derives profit, and/or to tarnish the Complainant’’s trademark EASYJET.

The Complainant contends that the disputed domain name was registered and has been used in bad faith. . Because of the international notoriety of the Complainant’s trademark EASYJET and the high profile of the airline and the easyJet Site, the Respondent would have been fully aware of the Complainant’s and/or easyJet’s rights and reputation prior to the registration of the disputed domain name and was in any event on constructive notice of the trademark registrations and other domain name registrations. The disputed domain name represents an example of "typo-squatting", which is a deliberate attempt to exploit a common typographical mistake of Internet users or search engines to lure Internet users to the Respondent’s site. The disputed domain name is used to divert Internet users to airline and travel services offered by the VIP Fares Site directly or by organization for which the VIP Fares Sites acts as a portal. The Respondent is calculated to deceive, mislead or confuse the public into believing that there is a connection or affiliation in the course of trade between the Complainant and/or easyJet and the activities carried on the disputed domain name or the websites linked to from the disputed domain name, or the goods or services available therefrom, alternatively confuse the public into believing that those activities and goods and services are endorsed or sponsored by the Complainant and/or easyJet.

The opportunistic use of the disputed domain name to divert Internet users to Internet gambling services and lure them into gambling will harm the goodwill and reputation in the Complainant’’s mark EASYJET and the easyJet business.

B. Respondent’s Contentions

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

 

6. Discussion and Findings

In accordance with Paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the disputed domain name, the Complainant must prove that each of the three following elements is satisfied:

- The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

- Respondent has no rights or legitimate interests in respect of the disputed domain name; and

- The disputed domain name was registered and is being used in bad faith

Pursuant to Paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom, as it considers appropriate.

A. Identical or Confusingly Similar

The Complainant owns the registrations for the trademark "EASYJET" in many countries (Schedule 6 to the Complaint). The Complainant also proves that, by reason of the extensive use, promotion and advertising of the easyJet business by reference to the mark, it enjoys the substantial goodwill and reputation in the use of the said mark in the field of aviation, travel and leisure, and in particular, in services offered and delivered by means of the Internet. Also, it is uncontested that the Complainant’’s rights in the trademark pre-date the Respondent’s registration of the disputed domain name.

The disputed domain name <wwweasyjet.com> differs from Complainant’s trademark "EASYJET" only to the extent of the addition of the prefix "www". The Panel, therefore, opines that the addition of "www" does not reduce or limit the likelihood of confusion. In fact, the letters "www" may have the effect of focusing attention on the word succeeding them. In the case of Reuters Limited v. Global 2000, Inc., WIPO Case No. D2000-0441 (July 13, 2000), the Panel stated that "www" was the well-known acronym for "world wide web" (normally used to refer to a type of publicly-accessible Internet server) and thus had no distinguishing capacity in a domain name context and concluded that the domain name "<wwwreuters.com" > was confusingly similar to the REUTERS marks. As the Panel in that case noted: "A casual reader of the domain name may wrongly think that there is a period between the ‘‘www’’ and the succeeding word, and so wrongly assume that the domain name is in fact comprised only of the succeeding word."

On the basis of the foregoing analysis, the Panel finds that the disputed domain name is confusingly similar to the trademark in which the Complainant has rights.

B. No Rights or Legitimate Interests

The Complainants submits that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent, whom did not file a Response, did not dispute this contention nor provide information as to its interests to use the dispute domain name.

The Policy presents the Complainant, under Paragraph 4(a)(ii), with the burden of proving that the Respondent has no rights or legitimate interests in respect of the disputed domain name. However, given the difficulty of excluding all possible interests the Respondent may have in a name, the Panel believes it proper to consider whether the Respondent has demonstrated its rights or legitimate interests in the disputed domain name in accordance with Paragraph 4(c) of the Policy in the overall evaluation of the evidence presented in this case (see Wal-Mart Stores, Inc. v. Lars Stork, WIPO Case No. D2000-0628, [August 11, 2000]).

There are three ways under Paragraph 4(c) by which the Respondent can demonstrate to the Panel that it has rights or legitimate interests in respect of the disputed domain name. However, given that the Respondent has not filed a response, no evidence has been presented by the Respondent to the Panel to show that Respondent is "commonly known by the disputed domain name" (Paragraph 4[c][ii]), or "making a legitimate noncommercial or fair use of the disputed domain name" (Paragraph 4[c][iii]).

Neither can the Panel find that the Respondent is using the disputed domain name in a bona fide offering of goods or services (Paragraph 4[c][i]). The Panel accessed the website at the address "<www.wwweasyjet.com>", and found that it is primarily used as a portal for a site providing on-line air tickets reservations and related travel services. Considering that the Complainant’s trademark "EASYJET" has established the reputation in the field of commercial passenger airlines and in particular, in services of on-line reservations via the website at "<www.easyjet.com>," the Respondent’s subsequent provision of the very similar services by using the domain name <wwweasyjet.com> that is very similar to the Complainant’s trademark cannot be regarded as "bona fide"..

Thus, in view of all the evidence submitted, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

C. Bad Faith

The Complainant contends that the disputed domain name was registered and is being used in bad faith.

The Panel finds that the disputed domain name was registered in 2001, six years after the Complainant started using the mark "EASYJET" and three years after the Complainant started offering on-line reservations via the website at "<www.easyjet.com>". Obviously, the Respondent was imitating the Complainant’s trademark, which had become well known, particularly, online, when registering the disputed domain name. The Panel, therefore, concluded that the disputed domain name was registered in bad faith.

The Panel finds that the disputed domain name has been used as a portal of a website entitled "VIP Fares", and attached with the pop-up windows for on-line gambling sites. Once a user accesses the website "VIP Fares" via the portal "<www.wwweasyjet.com>", "VIP Fares" site at "<www1.vipfares.com>" will be automatically and immediately loaded into the user’s computer.

It’s not clear what the relationship between the Respondent and "VIP Fares" site is. However, since the Respondent is the registrant and the administrator of the disputed domain name, the consequence of using the disputed domain name as a portal of "VIP Fares" site should be attributed to the Respondent.

Since "VIP Fares" site, which is providing on-line air ticket reservations in respect of various airlines, and the Complainant’s on-line reservation services under and by reference to the mark "EASYJET", are in the same field of business, the use of the disputed domain name as a portal of "VIP Fares" site demonstrates an intentional attempt to attract, for commercial gain, Internet users to "VIP Fare" site by creating a likelihood of confusion (caused either by "typo-piracy" or by search engines) with the Complainant’s marks. That in itself constitutes evidence of bad faith use under Paragraph 4(b) (iv) of the Policy.

There is some evidence that the pop-up windows for on-line gambling attached to the portal site <"www.wwweasyjet.com"> and the mouse-trapping technique (by which closure of one window would trigger the opening of another one) used in generating "VIP ares" site and on-line gambling web pages could damage the reputation of the Complainant’s mark "EASYJET", because on-line gambling is illegal in many countries and the mouse-trapping technique is extremely annoying to the Internet users. In light of the foregoing conclusion, however, it is unnecessary to decide whether the Complainant would win the case on this ground.

Therefore, the Panel finds that the disputed domain name was registered and is being used in bad faith.

 

7. Decision

The Panel concludes that the disputed domain name <wwweasyjet.com> is confusingly similar to the Complainant’s mark "EASYJET". The Panel has also determined that the Respondent has no rights or legitimate interests in the disputed domain name. The Panel lastly finds the disputed domain name has been registered and is being used in bad faith because the Respondent’s primary intent in registration and use of that name was to benefit commercially from the likelihood of confusion between it and the Complainant‘s trademark.

Therefore, in accordance with Paragraphs 4(a) and 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <wwweasyjet.com> be transferred to the Complainant.

 


 

Xue Hong
Sole Panelist

Dated: February 28, 2003

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2003/d2003-0012.html

 

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