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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Sociйtй Air France, Koninklijke Luchtvaart Maatschappij v. Wan-Fu China, Ltd.

Case No. D2007-0651

 

1. The Parties

The Complainants are Sociйtй Air France, Cedex, France, and Koninklijke Luchtvaart Maatschappij (KLM), Amstelveen, France, represented by MEYER & Partenaires, France.

The Respondent is Wan-Fu China, Ltd., Nassau, Bahamas.

2. The Domain Name and Registrar

The disputed domain name <flyingblue-online.net> is registered with Capitoldomains, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 30, 2007. On May 2, 2007, the Center transmitted by email to Capitoldomains, LLC a request for registrar verification in connection with the domain name at issue. On May 9, 2007, Capitoldomains, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 Paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 25, 2007. In accordance with Paragraph 5(a) of the Rules, the due date for Response was June 14, 2007. The Respondent did not submit any response. Accordingly, the Center issued notice of the Respondent’s default on June 18, 2007.

The Center appointed Zentaro Kitagawa as the sole panelist in this matter on June 20, 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 Paragraph 7 of the Rules.

 

4. Factual Background

1. The Complainants are Sociйtй Air France and Koninklijke Luchtvaart Maatschappij (KLM). Sociйtй Air France is one of the world’s major airline companies and KLM is an important international airline passenger and freight carrier. On September 29, 2003, the two companies announced the creation of a new airline group through a share exchange between them. The European Commission and United States Department of Justice approved the intended merger.

2. The Complainants are the jointly registered co-owners of a large number of trademarks consisting of or including the words “FLYING BLUE” in many countries:

- FLYING BLUE

Community nominative trademark n˚ 4003489 of February 25, 2005

Classes 9, 16, 35, 36, 38, 39 of the 1957 Nice Agreement;

- FLYING BLUE

International nominative trademark n˚ 863317 of February 25, 2005

Classes 9, 16, 35, 36, 38, 39 of the 1957 Nice Agreement, designating USA;

- FLYING BLUE

French nominative trademark n˚ 43310331 of August 30, 2004

Classes 9, 16, 35, 36, 38, 39 of the 1957 Nice Agreement.

3. The Complainant KLM registered, on September 21, 2005, the domain name of <flyingblue-online.com>. The domain name <flyingbluemiles.com> has been transferred to the Complainant Sociйtй Air France (see Sociйtй Air France and Koninklijke Luchtvaart Maatschappij v. MIC, WIPO Case No. D2006-0437).

4. The Complainants’ trademarks FLYING BLUE are widely known and used in commerce in a substantial number of countries in the world.

5. The Respondent Wan-Fu China, Ltd. is located in Nassau, Bahamas, and registered on March 8, 2007 the domain name <flyingblue-online.net>, which is the subject of this dispute.

6. The Complainants have filed this complaint against the Respondent seeking the transfer of the disputed domain name.

5. Parties’ Contentions

A. Complainants

1. The disputed domain name is identical or confusingly similar to the Complainants’ trademark FLYING BLUE (Policy, paragraph 4(a)(i)).

The Complainants claim that the domain name <flyingblue-online.net> is confusingly similar to their trademark FLYING BLUE.

The trademark FLYING BLUE is entirely reproduced in the disputed domain name. The combination of the trademark FLYING BLUE with the word “online” does not eliminate the risk of confusion with the Complainants’ trademark, which is the only distinctive element of the domain name in dispute. The mere 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 Complainants’ trademark.

The domain name <flyingblue-online.net> points to a parking webpage on which some hyperlinks exclusively in the field of online transportation and online-ticketing are displayed. As a consequence, a consumer who visits the website <flyingblue-online.net>will be confused because he or she will think without any doubt that the hyperlinks appearing on said webpage are being provided or recommended by the Complainants.

Additionally, the risk of confusion with the trademark FLYING BLUE is all the more important in that KLM is the registrant of the very similar domain name <flyingblue-online.com>.

2. The Respondent has no rights or legitimate interests in the disputed domain name (Policy, paragraph 4(a)(ii)).

The Complainants claim that the Respondent has no rights or legitimate interests with respect to the domain name <flyingblue-online.net>.

The Complainants had no knowledge of the Respondent Wan-Fu China, Ltd. before it acquired the domain name <flyingblue-online.net>. The Respondent is in no way related to the Complainants’ business. No license or authorization has been granted by the Complainants to the Respondent to make any use or apply for registration of the domain name <flyingblue-online.net>.

Furthermore, the disputed domain name has been registered by the Respondent to take advantage of the Complainants' well-known trademark to confuse and divert Internet users to competing websites, through a “pay per click” domain parking solution.

Consequently, the Respondent does not have rights or legitimate interests with respect to the disputed domain name.

3. The Respondent registered and is using the disputed domain name in bad faith (Policy, paragraph 4(a)(iii)).

The Complainants contend that the Respondent has registered and is using the disputed domain name in bad faith.

As to the bad faith registration, the Respondent could not have failed to be aware of the Complainants’ trademark FLYING BLUE at the time of registration of <flyingblue-online.net>. The Respondent's knowledge of the Complainants at the time it applied for the registration of the disputed domain name is proven by the hyperlinks set forth on the webpage of <flyingblue-online.net>, because all of them concern the field of airline transportation and online travel ticketing. The Respondent has registered the disputed domain name for the purpose of generating commercial gain by intentionally taking advantage of Internet traffic from Internet users seeking to gain access to the Complainants, or more particularly Flying Blue products and services on the Internet. The combination of these facts shows the bad faith registration of the disputed domain name.

As to bad faith use, the Complainants further content that the Respondent’s operation of the domain name <flyingblue-online.net> constitutes bad faith use. The Respondent uses the disputed domain name to divert Internet users to a parking webpage on which several hyperlinks are displayed, consisting exclusively of results in the field of airline transportation and online travel ticketing. These hyperlinks generate revenue to the benefit of the Respondent through a “pay per click” domain parking solution. The Respondent thus intends to realize material benefits by diluting the Complainants’ trademark FLYING BLUE. This use of domain name <flyingblue-online.net> is considered as unfair competition.

For all these reasons, the Respondent has engaged in the bad faith registration and use of the domain name <flyingblue-online.net>.

B. Respondent

The Respondent did not reply to the Complainants’ contentions.

 

6. Discussion and Findings

The Policy Requirements

This dispute is properly within the scope of the Policy, and this Administrative Panel has jurisdiction to decide the dispute.

Paragraph 4(a) of the Policy provides that the Complainants must prove each of the following:

(i) The domain name <flyingblue-online.net>is identical or confusingly similar to a trademark, in which the Complainants have rights;

(ii) The Respondent has no right or legitimate interest in respect of the domain name <flyingblue-online.net>; and

(iii) The domain name <flyingblue-online.net> has been registered and is being used in bad faith.

The respondent is not obliged to participate in a proceeding under the Policy, but, in case of default, facts asserted by the complainants may be taken as true and reasonable inferences by the panel, in accordance with Paragraph 14(b) of the Rules.

A. Identical or Confusingly Similar

The disputed domain name is a combination of the trademark FLYING BLUE with the wording “online”. The mere addition of a generic or descriptive term (“online”) to an otherwise distinctive trademark (FLYING BLUE) does not serve to distinguish the domain name from the Complainants’ trademark. The combined domain name <flyingblue-online.net> confusingly refers to the Complainants. See, for example, Advanced Micro Devices, Inc. v. Dmitry, WIPO Case No. D2000-0530 (<athlonchip.com>) and Crйdit Industriel et Commercial S.A v. Yu Ming ,WIPO Case No. D2005-0458 (<cicbank.com>). The risk of confusion is enhanced because Complainant KLM is the registrant of the very similar domain name <flyingblue-online.com>.

Thus, the disputed domain name <flyingblue-online.net> is confusingly similar to the Complainants’ trademark.

B. Rights or Legitimate Interests

The Complainants state that they had no knowledge of the Respondent Wan-Fu China, Ltd. before it acquired the domain name <flyingblue-online.net>. The Complainants further state that Respondent is in no way related to the Complainants’ business, and that no license or authorization has been granted by the Complainants to the Respondent to make any use or apply for the registration of the domain name <flyingblue-online.net>.

Consequently, the Complainants have made out a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name, which the Respondent has not rebutted. Thus, the Panel finds that the Complaiants have succeeded in establishing that the Respondent does not have any rights or legitimate interests with respect to the disputed domain name.

C. Registered and Used in Bad Faith

At the time of registration of <flyingblue-online.net>, the disputed domain name, the Panel considers that the Respondent must in all likelihood have been aware of the Complainants’ trademark FLYING BLUE. This is indicated inter alia by the hyperlinks set on the webpage of <flyingblue-online.net>, which all concern the field of airline transportation and online travel ticketing. The Panel does not consider the registration of the disputed domain name, and the placement of such hyperlinks, as likely to have been a coincidence.

As for the use of the disputed domain name by the Respondent, its manner of operating under the domain name <flyingblue-online.net> shows its bad faith use.

The Respondent appears to make use of the domain name in dispute for the purpose of generating commercial gain on a “pay per click” basis by intentionally taking advantage of Internet traffic from Internet users seeking to find the Complainants, or more particularly, Flying Blue products and services on the Internet.

For all of these reasons, the Panel finds that the Respondent has engaged in bad faith registration and use of the domain name <flyingblue-online.net>.

In addition, the Panel notes that the Respondent Wan-Fu China, Ltd. has often been involved as the respondent in arbitration proceedings filed before WIPO or NAF, regarding registration and use of other infringing domain names:

- Popular Enterprises, LLC v. Wan-Fu China, Ltd., NAF Case No. FA0701000892424 (<netsster.com>);

- Corbis Corporation v. Wan-Fu China, Ltd., WIPO Case No. D2006-1294 (<corbisphotography.com>);

- Morgan Stanley v. Wan-Fu China, Ltd., NAF Case No. FA0702000924567 (<msdwclientserv.com>);

- Pancil LLC v. Wan-Fu China, Ltd., WIPO Case No. D2007-0190 (<starfalll.org>);

- Confйdйration Nationale du Crйdit Mutuel v. Wan-Fu China, Ltd., WIPO Case No. D2006-1635 (<credt-mutuel.com>).

These records supplement the Panel’s findings.

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 <flyingblue-online.net> be transferred to the Complainants.


Zentaro Kitagawa
Sole Panelist

Date: July 2, 2007

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2007/d2007-0651.html

 

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