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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Sociйtй Air France v. Veraxio Internet Design Qualite-Air-France.Com

Case No. D2006-0846

 

1. The Parties

The Complainant is Sociйtй Air France, Roissy, France, represented by Meyer & Partenaires, France.

The Respondent is Veraxio Internet Design Qualite-Air-France.com, Algiers, Algeria.

 

2. The Domain Name and Registrar

The disputed domain name <qualite-air-france.com>is registered with Tucows Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 4, 2006. On July 4, 2006, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the domain name at issue. On July 5, 2006, Tucows 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, billing, and technical contact. 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 July 7, 2006. In accordance with the Rules, paragraph 5(a), the due date for the Response was July 27, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 28, 2006.

The Center appointed Francine Tan as the sole panelist in this matter on August 18, 2006. 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

Sociйtй Air France is one of the world’s major airline companies, tracing its origin back to 1933. It operates a web portal at “www.airfrance.com” and has registered several generic and country code top-level domain names consisting of or incorporating the trademark “Air France”. The domain name <airfrance.dz> which is dedicated to Algeria, the country in which the Respondent is supposed to be based, has been registered by the Complainant since July 2, 2003.

The Complainant is the registered owner of a large number of trademarks consisting of or including the words “Air France” in many countries worldwide, including Algeria.

The Respondent, Veraxio Internet Design Qualitй-Air-France.Com, is based in Algeria. The domain name <qualite-air-france.com> was registered on October 22, 2003.

The Complainant tried to settle the matter amicably by sending a cease and desist letter to the Respondent, requesting that it transfer ownership of the domain name to the Complainant. The letter was sent by email and registered mail, by the Complainant’s attorneys to the Respondent, on April 28, 2006. The Complainant received a failure notice concerning the email sent by the Complainant’s attorneys to the Respondent’s email address, and also a notification that the postal address of the Respondent was wrong.

The disputed domain name is, at the time of this Decision, live and directs to a website with hyperlinks to competing websites which concern tourism and travel. It also reflects the statements that “This website is for sale!” and “This domain may be for sale by its owner!"

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that:

1. The disputed domain name is confusingly similar to its well-known trademark “Air France”. Firstly, the trademark is reproduced in its entirety in the domain name. Secondly, the domain name combines the Complainant’s mark with the generic word “Qualitй” (a French word meaning “quality”). The addition of a generic or descriptive term to an otherwise distinctive or well-known trademark does not serve to distinguish the domain name from the Complainant’s trademark. In fact, the combination suggests that the disputed domain name is linked to or related to the Complainant. Customers may perceive the website to be a dedicated site covering issues of the Complainant’s quality control or a customer service-related site. The risk of confusion is all the more increased by the fact that one of the Complainant’s web pages is dedicated to providing information to customers on its “Quality plan”.

2. The Respondent has no rights or legitimate interests in respect of the disputed domain name for the following reasons:

(a) The Complainant does not have any business relationship with the Respondent.

(b) There is no evidence that the Respondent is currently, or has ever been, known by the trade name “Air France” or “Qualitй Air France”.

(c) The Complainant has not licensed nor authorized the Respondent to make use of or apply for registration of the domain name.

(d) The Respondent has registered the domain name in order to take advantage of the Complainant’s well-known trademark to confuse and divert Internet users to competing websites in the field of tourism and travel. Such use is not a bona fide offering of goods and services under the Policy.

(e) The Respondent does not appear to have engaged in any activity which shows that it has rights or legitimate interests in the domain name.

3. The domain name has been registered and used in bad faith:

(a) The Complainant states that the Respondent could not have known of the Complainant’s well-known trademark “Air France” at the time of application for the disputed domain name. The Complainant cited the case of Arthur Guinness Son & Co. (Dublin) Ltd v. Steel Vertigogo, WIPO Case No. D2001-0020 in support of its contention that the fame of a complainant’s trademark creates a presumption that the respondent registered the domain name for the purpose of selling it to the complainant or to one of its competitors, or for purposes of commercial gain by diverting Internet users to other competing websites.

(b) The Complainant notes the fact that the hyperlinks on the webpage of the disputed domain name all relate to the field of tourism and travel further demonstrates the Respondent’s bad faith.

(c) The Respondent’s failure to provide accurate WHOIS information reflects its bad faith.

(d) The domain name appears to be available for sale and this is indicative that the domain name has been registered primarily for the purpose of selling it to anyone, including the Complainant or its competitors, for valuable consideration far in excess of out-of-pocket expenses.

(e) It is obvious that the Respondent is not making any legitimate non-commercial or fair use of the disputed domain name.

B. Respondent

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

 

6. Discussion and Findings

Notwithstanding the Respondent’s default in not having filed a Response, the Complainant is obliged, pursuant to paragraph 4(a) of the Policy, to prove that each of the following three elements is satisfied:

(1) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

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

(3) the domain name has been registered and is being used in bad faith.

Under Paragraph 5(e) of the Rules, if the Respondent does not submit a Response and in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint.

A. Identical or Confusingly Similar

The Panel finds that the first element of paragraph 4(a) of the Policy has been satisfied. The Complainant has rights in the mark “Air France”, and the disputed domain name is confusingly similar thereto. It has been established in numerous Panel decisions that the addition of a generic or descriptive word is of no consequence to the finding of confusing similarity. (See e.g. Chanel, Inc. v. Cologne Zone, WIPO Case No. D2000-1809; Chanel, Inc. v. Estco Technology Group, WIPO Case No. D2000-0413; Scholastic Inc. v. 366 Publications, WIPO Case No. D2000-1627.) The Panel is of the view that the addition of the generic word “Qualitй” in fact increases the likelihood of confusion as it is an apt term in the context of the Complainant’s business and would mislead consumers into believing that the relevant webpage relates to customer service and/or quality control administered by the Complainant, or is otherwise endorsed by the Complainant.

B. Rights or Legitimate Interests

The Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The burden accordingly shifts to the Respondent to dispute the Complainant’s allegation. The Policy, paragraph 4(c), gives assistance to respondents as to how they may demonstrate their rights and legitimate interests in the domain name. The circumstances listed are non-exhaustive, and proof of any one of these would suffice for the purposes of the Respondent demonstrating its rights or legitimate interests. Those circumstances are as follows:

(i) before any notice to you 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 (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 are 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.

In not responding to the Complaint, the Panel is unable to make a finding other than that the Respondent has no rights or legitimate interests in the domain name. In this case, there is no evidence of a bona fide offering of goods or services by the Respondent corresponding to the domain name, nor any evidence which shows that the Respondent has been known by the domain name or acquired rights in the mark “Air France” or “Qualitй Air France”. Further, the hyperlinks on the website of the disputed domain name to other competing sites and the offer for sale of the domain name are inconsistent with legitimate non-commercial or fair use of the domain name. The Respondent appears, rather, to be using the domain name for commercial gain, to misleadingly divert consumers.

The Panel finds that the second element of paragraph 4(a) of the Policy has been satisfied.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy lists the non-exhaustive circumstances which would constitute evidence of bad faith registration and use:

(1) registration for the primary purposes of selling, renting or otherwise transferring the domain name to the complainant or to a competitor of the complainant, for valuable consideration in excess of out-of-pocket costs directly related to the domain name; or

(2) registration for the purpose of preventing the trademark owner from having its trademark as a domain name (provided there is a pattern of such conduct); or

(3) registration for the primary purpose of disrupting the business of a competitor; or

(4) an intentional attempt to attract, for commercial gain, Internet users to the website or other online location by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or other online location.

On the facts of this case, the Panel is satisfied that there has been bad faith use and registration. The fact that the domain name is used on a website which contains hyperlinks to other competing sites offering travel services shows that there is a deliberate attempt to attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website or other online location.

Further, the fact that the domain name is indicated on the website as being available for sale is indeed indicative that the domain name has been registered primarily for the purpose of selling it to the Complainant or its competitors, for valuable consideration in excess of out-of-pocket expenses.

Another factor that the Panel has taken into account in concluding that there has been bad faith registration is the Respondent’s failure to provide accurate information relating to its contact details. (See Telstra Corporation v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Yahoo! Inc. v. Zviely et al, WIPO Case No. D2000-0273). Apart from the difficulties encountered by the Complainant in this regard, the Panel has also noted that the Center’s emails to the Respondent bounced and failure notices were received, and the courier package sent to the Respondent was returned. It appears therefore that the Respondent has deliberately used false or inaccurate information in registering the domain name to conceal its identity and to make it difficult for it to be located for purposes such as these proceedings.

The Panel finds that the third element of paragraph 4(a) of the Policy has been satisfied.

 

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 <qualite-air-france.com> be transferred to the Complainant.


Francine Tan
Sole Panelist

Date: September 1, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0846.html

 

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