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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

SociГ©tГ© Air France v. Compsys Domain Solutions Private Limited.com / Domainproxyagent.com

Case No. D2008-1212

1. The Parties

Complainant is SociГ©tГ© Air France, Roissy CDG Cedex, France, represented by MEYER & Partenaires, France.

Respondent is Compsys Domain Solutions Private Limited.com / Domainproxyagent.com, Mumbai, Maharashtra, India.

2. The Domain Names and Registrar

The disputed domain names <airfranceair.com>, <airfrance-globalmeeting.com> and <emploi-airfrance.com> are registered with Lead Networks Domains Pvt. Ltd.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 8, 2008. On August 11, 2008, the Center transmitted by email to Lead Networks Domains Pvt. Ltd. a request for registrar verification in connection with the domain names at issue. On August 11, 2008, Lead Networks Domains Pvt. Ltd. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on August 21, 2008 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on August 21, 2008. The Center verified that the Complaint together with the amended version of 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 Respondent of the Complaint, and the proceedings commenced on August 25, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was September 14, 2008. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 19, 2008

The Center appointed Eduardo Machado as the sole panelist in this matter on September 26, 2008. 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

Complainant, Société AIR FRANCE, is one of the world’s major airline companies, tracing its origins back to 1933.

Complainant operates an international web portal at “www.airfrance.com”.

Complainant has also registered several generic and country code top-level domain names consisting of or incorporating the trademark AIR FRANCE including:

<airfrancejobs.com>

<emploiairfrance.com>

<airfrance-globalmeetings.com/.net/.biz/.info/.asia>

SociГ©tГ© Air France is the trade name of Complainant, used in commerce since 1933.

Complainant is the registered owner of a large number of trademarks consisting or including the wording “air france” in a great majority of countries in the world.

SociГ©tГ© AIR FRANCE is for instance the registered owner of trademarks in France and the United States, but also in India where Respondent is supposed to be established:

- AIR FRANCE, French nominative trademark No. 1, 703, 113 of October 31, 1991 for all classes of 1957 Nice Agreement, renewed on September 27, 2001;

- AIR FRANCE French nominative trademark No. 99, 811, 269 of September 6, 1999 in 32 classes of Nice Agreement and especially in class 38 for Internet services;

- AIR FRANCE nominative trademark registered in the United States of America on August 2nd, 1955 under No. 0610072, renewed on August 2, 1995, live;

- AIR FRANCE nominative trademark registered in New Zealand on January 13, 2005 under No. 682 491, live;

5. Parties’ Contentions

A. Complainant

Identity or Confusing Similarity of The Domain Name with the Trademark AIR FRANCE (paragraph 4(a)(i)):

Complainant claims that the domain names <airfrance-globalmeeting.com>, <airfranceair.com> and <emploi-airfrance.com> are confusingly similar to its trademark AIR FRANCE.

Complainant contends that the trademark AIR FRANCE is entirely reproduced in the disputed domain names.

Complainant contends that the domain names combine Complainant’s famous trademark with the suffixes “GLOBALMEETING”, “AIR” and the prefix “EMPLOI” and that:

- “Emploi” is a French word that literally means “employment” or “job” in the English language. The Complainant asserts that this word is descriptive of a fundamental service offered by any company, and more particularly international companies. The Complainant asserts that it dedicates an entire website to employment and career questions at the very similar URL http://emploi.airfrance.com. Also, the Complainant is the registrant of the very similar domain names <emploi-airfrance.com> and <airfrancejobs.com> (which means the same as the disputed domain name but in the English language) that points to its employment website.

- “Air” is a generic wording that directly refers to the Complainant’s field of activity

- “Globalmeeting” refers to one of the Complainant’s projects dedicated to event and meetings manager, see its website at “www.airfrance-globalmeetings.com”.

Complainant contends that the combination of the trademark AIR FRANCE with the expressions “emploi”, “air”or “globalmeeting” in the litigated domain names does not eliminate the risk of confusion with Complainant’s famous trademark AIR FRANCE, which is the only distinctive element of the domain names in dispute.

As a consequence, Complainant claims that the domain names <airfrance-globalmeeting.com>, <airfranceair.com> and <emploi-airfrance.com> are confusingly similar to its trademark AIR FRANCE.

Respondent has no Rights or Legitimate Interests in Respect of Domain Names (paragraph 4(a)(ii)):

Complainant contends that Respondent is not related in any way to Complainant’s business: it is not one of its agents and does not carry out any activity for, or has any business with it.

Complainant contends that Respondent is not currently and has never been known under the wording Air France, Air France Air, Airfrance Globalmeeting Nor Emploi Air France.

Complainant contends that no licence or authorization has been granted to Respondent to make any use, nor apply for registration of the domain names <airfrance-globalmeeting.com>, <airfranceair.com> and <emploi-airfrance.com> by Complainant.

Complainant contends that such use is not a bona fide offering of goods or services under Policy 4(c)(i), or a non-commercial or fair use under Policy 4 (c)(iii) and that Respondent has not engaged in any action that shows it has right or legitimate interests in the disputed domain names.

Bad Faith Registration and Use (paragraph 4(a)(iii)):

Bad Faith Registration

Complainant contends that Respondent could not have ignored the well-known trademark AIR FRANCE at the time it applied for registration of the confusingly similar domain names <airfrance-globalmeeting.com>, <airfranceair.com> and <emploi-airfrance.com>.

Complainant contends that, in registering the domain names at stake, Respondent wanted to refer to Complainant. Complainant asserts that Respondent has registered these domain names precisely because it knew the well-known character of Complainant’s trademark AIR FRANCE:

- The word “Emploi” which has been combined with the trademark AIR FRANCE in the disputed domain name <emploi-airfrance.com> is a French word (Société Air France is the French national airline) and fits with one of société Air France dedicated website;

- The word “Globalmeeting” directly refers to one of the Complainant’s dedicated websites;

- Some of the hyperlinks displayed under the disputed domain names concern the field of tourism and travel.

Complainant contends that Respondent registered the disputed domain names for the only purpose of generating commercial gain by intentionally taking advantage of Internet traffic and diverting Internet users to other commercial websites through hyperlinks.

More particularly, Complainant contends that by registering domain names <emploi-airfrance.com> and <airfrance-globalmeeting.com> very similar to Complainant’s “emploi.airfrance.com” and “www.airfrance-globalmeetings.com”, Respondent also tried to generate Internet traffic from internet users seeking Société Air France’s dedicated websites.

Bad Faith Use

Complainant contends that Respondent’s operating of the domain names <airfrance-globalmeeting.com>, <airfranceair.com> and <emploi-airfrance.com> constitutes bad faith use.

Complainant contends that Respondent uses the disputed domain names to divert Internet users to parking webpages on which several hyperlinks are displayed consisting for some of them of results in the field of tourism and travel.

Complainant contends that by clicking on these hyperlinks, users are directed to other results, for some of them in the field of tourism and online travel ticketing and pointing to competing third-party commercial websites.

Complainant contends that these hyperlinks generate revenue to the benefit of the Respondent through a “pay per click” domain parking solution, for which the Complainant concludes that the Respondent is intending to realize material benefits by diluting the fame of Complainant’s trademark.

Complainant contends that Respondent is not making any legitimate non-commercial or fair use of the disputed domain names because such use could mislead consumers by offering competing services, without having acquired any licence or permission from Complainant, which is the legitimate owner of the trademark AIR FRANCE.

Complainant claims that this use of the domains <airfrance-globalmeeting.com>, <airfranceair.com> and <emploi-airfrance.com> has to be considered as unfair competition.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

Pursuant to the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the domain names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the domain names; and (iii) the domain names have been registered and are being used in bad faith, Policy, paragraph 4(a).

A. Identical or Confusingly Similar

The Panel finds that <airfranceair.com>, <airfrance-globalmeeting.com> and <emploi-airfrance.com> are confusingly similar to Complainant’s AIR FRANCE trademarks since the dominant portion of the disputed domain names is “Air France.” The domain names differ from Complainant’s registered AIR FRANCE marks only in that they contain the generic and/or descriptive terms “air”, “globalmeeting” and “emploi”.

The Panel finds that adding generic and/or descriptive terms to a domain name such as “air”, “globalmeeting” and “emploi” is not sufficient to escape the finding of similarity and does not change the overall impression of the designation as being connected to the trademark of Complainant. Complainant has proven that its AIR FRANCE trademark is well-known. In this case the expressions “air”, “globalmeeting” and “emploi” do not serve any distinguishing function. Furthermore, the association of the disputed domain names with Complainant’s mark (and relative potential for confusion) is reinforced by the relevance of each of the generic terms to the sphere of Complainant’s commercial activities.

The Panel finds that Complainant has established the first element of the Policy.

B. Rights or Legitimate Interests

With respect to paragraph 4(c)(i) of the Policy, there is no evidence that Respondent, before any notice of the dispute, used or prepared to use the domain names or a name corresponding to the domain names in connection with a bona fide offering of goods or services.

With respect to paragraph 4(c)(ii) of the Policy, there is no evidence that indicates that Respondent has ever been commonly known by the domain names.

With respect to paragraph 4(c)(iii) of the Policy, Respondent has not made and is not making a legitimate noncommercial or fair use of the domain names. At the time Complaint was filed, the disputed domain names resolved to parking webpages on which several hyperlinks were displayed consisting for some of them of results in the field of tourism and travel.

Moreover, the domain names as of the date of this decision still resolve to pages that display links consisting for some of them of results in the field of tourism and travel. This is not a bona fide use. TM Acquisition Corp. v. Sign Guards, FA132439 (National Arbitration Forum, December 31, 2002) (finding that Respondent’s use of complainant’s marks to divert Internet users to a website which displayed a series of links, some of which were links to sites of complainant’s competitors, was not a bona fide offering of goods or services).

A complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name(s). If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. Morgan Freeman v. Mighty LLC, WIPO Case No. D2005-0263; Croatia Airlines d.d. v. Modern Empire Internet Ltd, WIPO Case No. D2003-0455; and Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.

The Panel finds that the Complainant has established the second element of the Policy.

C. Registered and Used in Bad Faith

Under paragraph 4(b), a respondent has used and registered a domain name in bad faith if, inter alia, the respondent has used the domain name intentionally to attempt to attract, for commercial gain, Internet users to the respondent’s 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 respondent’s site or of a product or service offered on the respondent’s site. Policy paragraph 4(b)(iv).

The Panel finds that Respondent registered the domain names in bad faith.

Complainant’s allegations of bad faith are not contested. Complainant’s trademark AIR FRANCE is well-known and, therefore, the Panel finds persuasive Complainant’s allegation that Respondent must have been aware of Complainant’s rights in the mark and, further that Respondent knowingly infringed Complainant’s trademark when it registered the subject domain names.

Under the Policy, it is evidence of bad faith that, “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.”, Policy paragraph 4(b)(iv). Respondent used Complainant’s known to attract users to Respondents’ websites where they are offered links to Complainant’s competitors. This is evidence of the intention by Respondent to attract Internet users for commercial gain, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondents’ website or of a product or service on Respondents’ website.

At the time the Complaint was filed and at the time of this Decision, the domain names still resolved to pages that offer visitors links consisting for some of them of results in the field of tourism and travel. Staples, Inc., Staples The Office Superstore, Inc., Staples Contract and & Commercial, Inc. v. John Morgan, WIPO Case No. D2004-0537 (“the Panel is persuaded that Respondent’s registration and use of the disputed domain name for re-directing Internet users, particularly customers and potential customers of Complainants, from the Complainants’ website to the website of OfficeMax, a company which directly competes with the Complainants, constitutes bad faith and use. Prior WIPO UDRP decisions also support this conclusion.”) See also Edmunds.com, Inc. v. Ult. Search, Inc., WIPO Case No. D2001-1319 (“registration and use of a domain name to redirect Internet users to websites of competing organizations constitutes bad faith registration and use under the Policy.”).

Accordingly the Panel finds that Complainant has made out bad faith registration and use of the domain name by Respondent.

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 names, <airfranceair.com>, <airfrance-globalmeeting.com> and <emploi-airfrance.com> be transferred to Complainant.


Eduardo Machado
Sole Panelist

Dated: October 10, 2008

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2008/d2008-1212.html

 

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