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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Airbus Deutschland Gmbh v. Shahram Kolahzadeh

Case No. D2007-0088

 

1. The Parties

The Complainant is Airbus Deutschland Gmbh, Hamburg, Germany, represented by Bird & Bird Solicitors, France.

The Respondent is Shahram Kolahzadeh, Grampian, United Kingdom of Great Britain and Northern Ireland.

2. The Domain Names and Registrar

The disputed domain names are <airbusa340.com>, <airbus320.com>, <airbus321.com>, <airbus380.com> and <flyairbus.com>.

The registrar with which all the domain names are registered is Wild West Domains, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 23, 2007. On January 25, 2007, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the domain names at issue. On the same day, Wild West Domains, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of the disputed domain names 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 January 31, 2007.

Upon the Complainant’s requests on February 20 and March 9, 2007 respectively, the Proceeding was suspended from February 21, 2007 until April 13, 2007.

In accordance with the Rules, paragraph 5(a), the due date for Response was April 24, 2007. The Response was filed with the Center on April 24, 2007.

On May 2, 2007, the Complainant filed a supplemental submission with the Center.

The Center appointed Dr. Bernhard F. Meyer-Hauser as the sole panelist in this matter on May 22, 2007. 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 belongs to the Airbus group which was established in 1970 as a European consortium of French, German and later Spanish and United Kingdom companies. In 2001, the consortium became a fully integrated company, incorporated as a simplified joint stock company or S.A.S (Sociйtй par Actions Simplifiйe) under French law (“Airbus”). Since 2006, the European Aeronautic Defence and Space Company (EADS) owns 100% of the Airbus shares.

Airbus group is one of the two leading aircraft manufacturers in the world and takes around half of all aircraft orders for airliners with more than 100 seats. Airbus group has more than 150 sites throughout the world, including 16 development and manufacturing facilities in France, Germany (where the Complainant is established), United Kingdom (where Respondent is living) and Spain, where Airbus aircrafts are designed, built, assembled and tested. Airbus also operates several subsidiaries, regional offices, training centers, spare centers and resident customer services offices. In total, Airbus has 55,000 employees worldwide.

The Complainant has filed trademark applications for AIRBUS, A320, A321, A340 and A380 in more than 40 countries, including the European Union, United States of America, China and Taiwan, Province of China. The numbers reflected in Airbus’ registered trademarks correspond to so-called Airbus aircraft families, whereby the designation A320 (and its subcategories A318, A319 and A321) are used for relatively small, single-aisle aircrafts while the designations A330 and A340 are used for relatively large, wide-body, long distance planes. At the top of the Airbus product range is the double-deck A380 which is not yet commercially operating.

The disputed Airbus domain names were registered by the Respondent at the following dates:

<airbus320.com> on October 9, 2003;

<airbus321.com> on May 17, 2004;

<airbusa340.com> on August 2, 2005;

<airbus380.com> on January 25, 2004;

<flyairbus.com> on March 13, 2005.

The websites associated with the domain names are currently inactive.

 

5. Parties’ Contentions

A. Complainant

The Complainant objects to the use of the disputed domain names by the Respondent and bases its Complaint on the following grounds:

1. The disputed domain names are all identical or confusingly similar to the trademarks in which the Complainant has rights.

The Respondent’s registrations are combinations or modifications of the Complainant’s trademarks AIRBUS, A320, A321, A340 and A380 with the adjunction of the gTLD “.com”.

The domain names <airbus320.com>, <airbus321.com>, <airbusa340.com> and <airbus380.com> incorporate two of the Complainant’s trademarks. Even if the disputed domain names are not exactly identical to the registered trademarks, it is clear that they are confusingly similar since each of them contains distinctive elements of the Complainant’s relevant trademarks.

Furthermore, the sole fact of modifying the Complainant’s trademarks by removing the letter “A” before 320, 321 and 380 for the domain names <airbus320.com>, <airbus321.com> and <airbus380.com> does not allay the similarity to the Complainant’s trademarks.

Regarding the domain name <flyairbus.com>, it shall to be considered that the mere adding of a generic word to the trademark does not prevent the finding of confusing similarity between the domain name and the trademark.

2. The Respondent has no legitimate interest in respect of the disputed domain names.

The Respondent has never been authorized by the Complainant to use the domain names <airbus320.com>, <airbus321.com>, <airbusa340.com>, <airbus380.com> and <flyairbus.com>: The Complainant has prior rights in the trademarks AIRBUS, A380, A320, A321 and A340, which were all registered before the Respondent registered the disputed domain names.

Furthermore, the Respondent must have registered the disputed domain names with the sole intention to divert consumers to its own websites and to prevent the Complainant from reflecting its trademarks on the corresponding domain names. This behaviour cannot be regarded as a bona fide offering of goods or services or a fair use of the domain name.

3. Finally, the Respondent registered (and uses) the domain names in bad faith for the following reasons:

The Respondent must have been aware that the Complainant is one of the two leading aircraft manufacturers worldwide. The Respondent registered the disputed domain names in order to prevent the Complainant from reflecting the marks on the corresponding websites and to disrupt the Complainant’s business.

When the Complainant sent a cease and desist letter to the Respondent on July 21, 2006, the contentious domain names were leading to a portal promoting links to travels. Since then, the disputed domain names lead to an error webpage. The mere holding of an inactive website must also be considered as a registration and use in bad faith.

B. Respondent

The Respondent alleges that he is entitled to use the disputed domain names for the following reasons:

1. The domain names are not identical or confusingly similar to a trademark or a service mark in which the Complainant has rights.

The domain names <airbus380.com>, <airbus320.com>, <airbus321.com> and <flyairbus.com> are combinations of a number or a word and “airbus”, a name which happens to be trademarked. These domain names are comparable to <driveford.com>, <buyBMW.com> or <airbusflight.com>, which are all active sites on the Internet.

The Respondent acknowledges that the Complainant has rights in the marks AIRBUS, A380, A320, A321 and A340. However, this does not include any rights in the specific numbers or in the combination of numbers and word “airbus”.

2. The Respondent has a legitimate interest in using the domain name.

The Respondent was not aware of the existence of the Complainant’s above mentioned trademarks until he received the cease and desist letter on July 21, 2006.

The disputed domain names were initially linked to a web construction page for a forum site. After the Respondent had received the cease and desist letter, the links to the original web page were suspended for the duration of the proceeding. This was communicated to the Complainant on July 27, 2006.

The domain name was registered in order to provide a common site for aviation enthusiast and pilots to discuss aviation topics and recent developments, such as other existing sites like <airbusa380.com>.

Moreover, the Respondent has neither made any profit from the disputed domain names, nor has he tried to sell them for profit. The Respondent, therefore, never intended and does not intend to misleadingly divert consumers for commercial gain.

3. The Respondent did not register the domain names in bad faith for the following reasons:

The Respondent has never tried to rent, sell or lease any of the disputed domain names to the Complainant, its competitors or any third party. Furthermore, the Respondent has not drawn any profit from the registration or use of the domain names.

Finally, the Respondent is not a competitor of the Complainant and did not register the domain names for the purpose of disrupting the Complainant’s business. The sole purpose of acquiring the disputed domain names was to provide links to a discussion forum.

6. Discussion and Findings

Procedural Matters

The Panel notes that the Center received a further submission by the Complainant on May 3, 2007. This submission had not been requested by the Panel pursuant to Rule 12.

Regarding supplemental submissions, Rule 12 of the Rules unambiguously provides that the Panel may request, in its sole discretion, further statements or documents from either of the parties. There is no provision in the Rules allowing a party to file an additional submission without leave of the Panel. This is because under the expedited process provided under the Policy and Rules each party is given one opportunity to put forward all the material on which it wishes to rely and is expected to do so (Delikomat Betriebsverpflegung Gesellschaft m.b.H. v. Alexander Lehner, WIPO Case No. D2001-1447).

After consideration of Complainant’s supplemental submission, the Panel concludes that it does not address topics which Complainant could not have brought up in its original Complaint and the Panel decides not admit the supplemental filing.

Substantive Matters

Paragraph 4(a) of the Policy sets forth three elements that must be established by the Complainant to merit a finding that the Respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:

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

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

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

A. Identical or Confusingly Similar

The domain name <airbusa340 > is a combination of two of the Complainant’s registered trademarks (AIRBUS and A340). Thus, it is, if not identical, at least confusingly similar to the trademarks in which the Complainant has rights.

The domain names <airbus320.com>, <airbus321.com> and <airbus380.com> contain the Complainant’s trademark AIRBUS and the numbers (or Airbus family names) 320, 321 and 380 respectively. These Airbus family names are, in turn, protected by the Complainant’s trademarks A320, A321 and A380. The mere omission of the letter “A” next to the numbers (which obviously stands for “Airbus”) does not allay the confusing similarity of the disputed domain names to the Complainant’s trademarks.

The domain name <flyairbus.com> combines the Complainant’s trademark AIRBUS with the generic term “fly”. Neither the addition of an ordinary descriptive word (either as prefix or suffix) nor the suffix “.com” detract from the overall impression and the dominant part of the name is instantly recognizable as the famous trademark AIRBUS. The addition of the word “fly” to the Complainant’s trademark even increases the likelihood of confusion since Airbus is commonly known as a major aircraft manufacturer that obviously wishes the world to fly its aircrafts (see Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil, WIPO Case No. D2000-1409; UBS AG v. Rudolf Gautsch, WIPO Case No. D2005-0993).

The Panel finds that the Complainant therefore has fulfilled the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy, the following circumstances can demonstrate rights to and legitimate interests of a Respondent in a domain name:

(i) before any notice was given to the Respondent of the dispute, the Respondent used, or demonstrably made 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) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even though it has not acquired any trademark or service mark rights; or

(iii) The Respondent is making a legitimate non-commercial or fair use of the domain name.

The Complainant states that the Respondent was not authorised by the Complainant to use its trademarks nor any of the disputed domain names, and there is no evidence before the Panel that the Respondent has been commonly known by the disputed domain names.

The websites associated with the domain names currently show no content. While it appears that they were active before the Complainant sent a cease and desist letter to the Respondent on July 21, 2006, the facts concerning the previous and intended use of the domain names remain disputed and can not be verified by the Panel. The Complainant alleges that the corresponding websites were leading to a portal promoting links for travels, whereas the Respondent contends that the sole purpose of the registration was to provide a discussion forum for aviation enthusiasts without making any commercial use of the domain names.

In any case, the Respondent has not provided the Panel with sufficient information that would suggest that he had previously used the domain names for, or that he was making demonstrable preparations for future use in connection with, a bona fide offering of goods or services. In fact, it seems inconceivable that the Respondent could make any active use of the disputed domain names without creating at least an initial false impression of association with the Complainant.

The fact that the Respondent registered five different domain names, all of which are confusingly similar to the Complainant’s trademarks, casts additional doubts on Respondent’s purported intention to create a common site for aviation enthusiasts.

For all these reasons, the Panel finds that the Complainant has established a prima facie case, which the Respondent has failed to convincingly rebut, that the Respondent has no legitimate interest in respect of the domain names in the sense of paragraph 4(c) of the Policy.

C. Registered and Used in Bad Faith

According to paragraph 4(b) of the Policy, a domain name has been used and registered in bad faith if:

(i) circumstances indicating that Respondent has registered and has 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 Respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) Respondent has 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 Respondent has engaged in a pattern of such conduct; or

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

(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 Respondent’s website or location or of a product or service on its website or location.

The Respondent registered several domain names reflecting the famous trademark AIRBUS although he obviously never had any rights in this trademark. In the Panel’s opinion, the Respondent was aware of the Complainant’s trademark already at the time when he filed the registrations. The registration of five domain names incorporating the famous trademark AIRBUS, combined with additional numbers or prefixes that are themselves Airbus trademarks and which are strongly associated with aircraft types manufactured by the Airbus group, indicates that the purpose of the registrations was to prevent the owner of the trademarks from reflecting the marks in corresponding domain names. The registration of several names corresponding to Complainant’s trademarks is sufficient itself to constitute a pattern of such conduct, and constitutes bad faith within the meaning of paragraph 4(b)(ii) of the Policy (General Electric Company v. Normina Anstalt a/k/a Igor Fyodorov, WIPO Case No. D2000-0452).

The Panel further notes that the Respondent has not provided any compelling explanation for the lack of discussion-related content on the websites associated with the domain names, or indeed the number of domain names registered. In the circumstances, the Panel is not persuaded by the Respondent’s contention that the sole purpose of acquiring the various disputed domain names was to post links to AIRBUS discussion sites; a commercial or monetary motivation appears to the Panel to be a more likely explanation.

To summarise, the Respondent has registered and is using the domain names in bad faith in accordance with paragraph 4(b) of the Policy.

 

7. Decision

In consideration of the above, the Panel holds that the domain names <airbusa340.com>, <airbus320.com>, <airbus321.com>, <airbus380.com> and <flyairbus.com> are confusingly similar to the registered trademarks of the Complainant, that the Respondent has no rights or legitimate interests in respect of the domain names, and that the domain names have been registered and are being used in bad faith.

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and paragraph 15 of the Rules, the Panel orders that the domain names <airbusa340.com>, <airbus320.com>, <airbus321.com>, <airbus380.com> and <flyairbus.com> shall be transferred to the Complainant.


Dr. Bernhard F. Meyer-Hauser
Sole Panelist

Dated: June 3, 2007

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2007/d2007-0088.html

 

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