WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Easyjet Airline Company Limited v. Stephen B. Harding
Case No. D 2000-0398
1. The Parties
Complainant: Easyjet Airline Company Limited of Easyland, Luton
Airport, Luton, Bedfordshire, LU2 9LY England
Respondent: Stephen B. Harding of Hardings, Boathouse Lane,
Parkgate, Wirral, Cheshire, CH4 6RD, England
2. The Domain Name(s) and Registrar(s)
Domain Name: easy-jet.net
Registrar: Easyspace Limited
3. Procedural History
The Complaint was filed on May 8, 2000. WIPO verified that the Complaint satisfies the Rules and the Supplemental Rules and that payment was properly made. The panelist is satisfied this is the case.
The Complaint was properly notified in accordance with Rules, paragraph 2 (a) and a Response was filed by the Respondent within the deadline of June 4, 2000.
The administrative panel was properly constituted. The undersigned panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
No further submissions were received by WIPO or the Panel as a consequence of which the date scheduled for the issuance of the Panel's decision was June 23, 2000.
4. Factual Background
The Complainant was incorporated under its present name on March 17, 1995. Its airline is based in the United Kingdom and flies to destinations in many countries of Europe. Turnover for the Complainant for the period September 30, 1998, to September 30, 1999, was £77 million. The Complainant is widely advertised and promoted.
The Complainant is the proprietor of trademark registrations for the mark EASYJET in the UK, the USA, Germany, France, Norway, Switzerland, Benelux and Sweden. The UK registration covers, inter alia, airline and shipping services, arrangement of transportation of goods and passengers by land and sea, rental and hire of vehicles, boats and aircraft, travel agency and tourist office services, cruises, tours, excursions and vacations.
The Complainant is also the registrant of the domain names
Approximately 60% of the Complainant's ticket sales are made through its website.
In previous proceedings under the Policy (Easyjet Airline Company Limited v Andrew Steggles Case No. D2000-0024) a panelist found that EASYJET was a well-known mark in the European Union and the United States on the basis of huge advertising campaigns.
The Complainant has given no consent, license or authorization to the Respondent for the use or registration of the Domain Name.
The Respondent does not contest any of the above facts.
5. Parties' Contentions
The Complainant submits that the Domain Name easy-jet.net is identical or virtually identical to its trade mark EASYJET, that the Respondent has no rights or legitimate interest in respect of the Domain Name and finally that the Domain Name has been registered and is used in bad faith.
The Complainant states that the Domain Name points to a temporary holding page provided by Easyspace and this fact has been independently confirmed by the panelist. The Complainant said it could find no evidence that the Respondent has used the EASY-JET name or had any intention to use it in any legitimate business. It asserts that any reason put forward for registration and use at this stage will be a sham. Additionally, the Complainant states that the Respondent has never been known by the Domain Name and is not making legitimate non-commercial or fair use if it.
The Complainant sent an E mail to the Respondent offering to buy the name for £1000 plus transfer costs, but says it did not receive a substantive response despite reminders.
An investigator representing the Complainant contacted the Respondent. The Complainant alleges that the investigator's report shows that the Respondent was interested in selling the domain name and was "perfectly aware" of the Complainant's rights in the EASYJET mark.
The Complainant asserts that in view of the enormous promotion and public recognition of the EASYJET trademark generated by the Complainant, the Respondent must have been aware of the Complainant's business and its rights in the EASYJET mark.
The Complainant says that the Easyspace holding page is liable to deceive the public into believing that the Complainant's site cannot be accessed, or is temporarily "down" or out of operation and that this will cause confusion and damage to its business.
The Complainant asserts that the Respondent registered the domain name for the purpose of selling or renting the name to the Complainant or another party and has intentionally attempted to attract traffic to the Respondent' site for commercial gain. The commercial gain is said to be the intended sale of the Domain Name.
The Respondent states that the Domain Name is not identical to the Complainant's EASYJET mark, that the Domain Name was registered in good faith for intended use on the Internet and that it is not being used in bad faith.
The Respondent states that he was unaware of the Easyspace temporary holding page which was attached by Easyspace without his request.
The Respondent says he did reply to the e mail sent to him by the Complainant and did not receive any reminders or further contact after this except for the investigator's approach. The Respondent said that he was suffering from a throat and chest infection at the time he was contacted by the investigator and that partly due to his condition he did not express much interest in the caller's proposition. His version of what was said does not differ much from the investigator's report i.e. that he stated that Easyjet had already approached him, that he was going on holiday and that if the domain were to become available he would contact the caller. He says he had no intention as to what he would do on return from his holiday at the time of the call, but he says he has never tried to call the investigator's number to follow the matter. He denies that he made any attempt to sell the name or that he was "perfectly aware" of the Complainant's rights.
The Respondent says that no one asked him why he registered the name. He says he is a car dealer and intended to diversify into the sale, service and repair of personal watercraft known as jet-skis or jet boats. In support of this he produces a letter dated 20 September and a brochure from EP Barrus Limited.
The Respondent claims that he lives and works in a semi rural area, works 7 days a week, does not read newspapers or magazines and rarely watches television. He says that at the time of registration he was not aware of the Complainant's similar trading name or marks. He denies attempting to attract users for commercial gain and says that the Domain Name has not been used.
The Respondent says that following the approach by the Complainant he discussed the matter with his accountant and was told that "a party with a similar name may cause confusion to my prospective customers also that such a party may have a trade mark in the United Kingdom and that I should make inquiries prior to commencing trading." He says that he has not made such enquiries due to prevention by "other matters" and is simply guilty of lack of research. He says his motorcycle business took him three years from conception to formation of his company.
The Respondent states "When approached by third parties to sell my domain name I feel that it was reasonable of me to consider a sale given that I was now aware of a user with a similar name which could cause confusion to my prospective customers."
6. Discussion and Findings
According to paragraph 4(a) of the Uniform Dispute Resolution Procedure Policy, the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The Domain Name has been registered and is being used in bad faith.
A. Identical or confusing similarity
It is prima facie obvious that the Domain Name is virtually identical to the Complainant's EASYJET mark and therefore that they are confusingly similar.
The Respondent concedes in its Response that the name is similar and that confusion could be caused.
B. Rights or legitimate interest of the Respondent
The Respondent does not operate an existing business under the EASY-JET name and has no rights to any trade names or registered trademarks including the name EASY-JET.
The Respondent states that he intends to start a business specializing in the sale, service and repair of personal watercraft known as jet-skis and/or jetboats. As proof of this he submits a letter dated September 20, 1999, and a brochure from EP Barrus Limited. However, the brochure is undated and neither document mentions the name EASY-JET or contains the words "Jet", "Jet-skis" or "Jet boats".
Accordingly, there is no evidence submitted to the panel proving that the Respondent has rights or a legitimate interest in the Domain Name.
The panelist therefore concludes that the Respondent has no rights or legitimate interests in respect of the domain name. Mere registration alone cannot constitute such rights or this limb of the test would always be satisfied by Respondents.
C. Bad Faith
Paragraph 4 (b) of the Rules sets out four non exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith as follows:
(i) the Respondent has registered or 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 trade mark or service mark or to a competitor of that complainant for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the domain name; or
(ii) the Respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct: or
(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site 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 its web site or location or of a product or service on its web site or location.
The Complainant's assertions of bad faith revolve around assertions that the Respondent registered the name with the primary aim of selling the name to the Complainant or a third party, but there is no actual proof of this.
I have grave reservations in accepting on face value the Respondent's assertions that at the time of the registration of the Domain Name he had never heard of the Respondent's trade name and trade mark EASYJET. The mark has been found in previous proceedings to be well known in the United Kingdom where the Respondent is resident. Further, even if the Respondent does not read newspapers or magazines or watch television, I find it highly likely that in February 2000 when the domain was registered that the Respondent would have been aware of the Complainant's activities through billboard advertisements or through his general contact with customers and colleagues at work and friends and family. However, the Complainant has not proved that the Respondent was so aware.
Even if this had been proved, there is no proof of an attempt to sell to anyone. The site does not offer the name for sale. What the Respondent is reported to have said to the investigator is inconclusive and, in my view does not constitute an offer to sell. The Respondent did not subsequently contact the investigator to pursue a sale. Whilst the Respondent suggests he considered sale after being made aware of possible legal problems, no efforts to sell have been proven. If there were a genuine effort to sell I would have expected the Complainant to have submitted some proof of the same. Accordingly, I cannot find bad faith in accordance with section 4 (b) (i) of the Rules.
Further, there is no evidence that the Respondent has engaged in a pattern of cybersquatting conduct or, put another way, has registered a series of domain names containing well known trade marks for gain. The Complainant's investigator's report states that the Respondent has no further domain name registrations. Accordingly, even disregarding the issue of whether the Respondent was aware of the Complainant at the time of Registration, I cannot find bad faith under section 4 (b) (ii) of the rules.
Whilst it is no doubt inconvenient for the Complainant that the domain name does not point to its site, there is no evidence that the Respondent registered the domain name to disrupt the Complainant's business or intended to create a likelihood of confusion. I cannot, therefore find bad faith under section 4 (b) (iii) and (iv) of the Rules.
The four criteria in section 4 (b) of the Rules are not an exhaustive list of what can constitute bad faith, but no other grounds have been alleged (such as an attempt to provide false contact details by the Respondent). If the Complainant were to subsequently find proof of registration and use in bad faith of the Domain Name by the Respondent it could attempt a further complaint using the Policy.
This case can be distinguished from the previously decided case Easyjet Airline Company Ltd v Andrew Steggles Case No.D 2000-0024 as in that case the Respondent knew about the Complainant's existence, had links on the site connected to the Domain name EASYJET.NET (no hyphen) to the sites of two competitors of the Complainant and had asked for a six figure sum for sale of the name.
I express no view as to the likelihood of the Complainant succeeding in an UK Court. However, I would point out that whilst trade mark infringement and passing off in the United Kingdom do not require bad faith or an intention to profit, deceive or disrupt business, bad faith must be proven under the Policy. The Policy was designed to apply only in clear cases of cybersquatting. In the absence of a clear case of bad faith or a dishonest intention on the part of the Respondent, the better forum for this dispute would be the UK High Court, trade mark list.
In light of the foregoing the panelist decides that, although the domain name is virtually identical to the Complainant's trade mark EASYJET and the Respondent has no rights or legitimate interest in respect of the Domain Name, there is no proof that the Domain Name was registered or used in bad faith.
The Complainant having failed to provide the evidence necessary to satisfy all three limbs of section 4 (a) of the Policy, the Complaint is hereby dismissed.
Dated: June 22, 2000