WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
EasyJet Airline Company Limited v. Marie Claire & [Unknown]
Case No. D2000-1504
This is a mandatory administrative proceeding submitted for decision in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999 (the "Rules") and the World Intellectual Property Organization ("WIPO") Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules.
The Administrative Panel consisting of one member was appointed on January 21, 2001 by WIPO.
2. The Parties
The Complainant in this administrative proceeding is EasyJet Airline Company Limited, a company incorporated under the laws of England and Wales with registered number 03034606.
The Respondents named in this Administrative Proceeding is Marie Claire & [Unknown], having a listed address of 51 Ranelagh Road, Ranelagh, D6, Ireland.
The Complainant included "[Unknown]" as a Respondent because it "Ö assumes from the presence of the "&" symbol that the Registrant intended for a further name to appear." The is no evidence to support the assumption and the inclusion of "[Unknown]" neither adds anything to nor detracts from the substantive case advanced by the Complainant. Inclusion of the word may jeopardise any relief available to the Complainant because the registrant of the subject domain name is Marie Claire &, only. In this decision, the word Respondent shall mean "Marie Claire &".
3. The Domain Names and Registrar
Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, Virginia 20170-5139
4. Jurisdiction and Related Matters
By registering the subject domain name with the Registrar, the Respondent agreed to the resolution of disputes pursuant to the Policy and Rules.
5. Procedural History
Complainant filed its Complaint with the World Intellectual Property Organization Arbitration and Mediation Center (the "Center") on November 2, 2000. The Center dispatched to the Registrar a Request for Registrar Verification on November 16, 2000. On November 21, 2000, having verified that the Complaint satisfied the formal requirements of the Uniform Policy and the Uniform Rules, the Center formally commenced this proceeding and notified the Respondent that its Response would be due by December 15, 2000. The Respondent did not file a response by the due date.
An examination of this material confirms that all technical requirements for the prosecution of this proceeding were met.
Neither party requested an opportunity to make further submissions and the Administrative Panel is content to proceed on the basis of the existing record.
6. Factual Background
Since March 1995 the Complainant has operated a commercial passenger airline and travel related businesses under and by reference to the mark EASYJET. In excess of £40m has been spent promoting and advertising such services under the mark. Much of the advertising is by means of national and international press and publications, poster campaigns, radio advertisements and other media such as livery on London taxis and public transport.
During the financial year ending 30 September 2000, the Complainant achieved a turnover of £263m and carried 5.6m passengers. At the date of the Complaint, the Complainant operated 19 Boeing 737ís with a further 32 on order, on 28 routes to all major European airports.
The Complainant has a high media and public profile. Its mark is very well-known in the United Kingdom, Europe and beyond. The United Kingdom television channel "ITV" has produced five "fly-on-the-wall" television series portraying the day to day activities of the airline, its passengers and staff. The first program of the most recent series was screened Friday June, 23 2000, and received an audience of 7.5 million viewers (being 37% of the viewing audience at that time). The Complainantís airline has won numerous awards for its services under the mark EASYJET:
(a) readers of The Daily Telegraph newspaper recently voted the Complainantís airline "Best Low Cost Airline";
(b) business Traveler Magazine recently voted the Complainantís airline "Best Low-Cost Airline" of the year, for the second consecutive year;
(c) the Chartered Institute of Marketing publication "Marketing Week" recently awarded the Complainantís airline an award for "brand effectiveness"; and
(d) the Complainant together with its affiliated "Easy Group" of companies was recently awarded the title of "e-company of the year" at the Future UK Internet Awards.
The awards attract press coverage.
The Complainantís commercial strategy makes extensive use of the Internet to deliver, advertise and promote its services. Central to this strategy is its website addressed by domain name "www.easyjet.com". By means of its web site, the Complainant conducts much of its business "direct-to-consumer". During the week ending September 3, 2000, the Complainant sold 191,849 seats online, which accounted for over 80 per cent of the total tickets sold during that period. During the period from January 1, 2000, to the end of September 2000, the Complainantís home page at received an average of 492,527 hits per week.
The Complainant has registered more than 450 Internet domain names. These domain registrations can be subdivided into two categories, being:
(a) exact renderings of the Complainantís trade and service marks, for example, "easyjet.co.uk:", "easyjet.gr", "easyjet.li"; and
(b) confusingly similar derivatives of and typographical errors of those same marks, for example, "ezejet.com" and "easjet.com".
All these domain names point to the Complainantís homepage.
The Complainant is the proprietor of numerous trademark registrations in its mark EASYJET (and derivatives thereof), including the United Kingdom (No. 2016785), the United States (No 2197131), France (No. 95590523), Germany (No. 39539526), Switzerland (No. 432357), Norway (No. 183874), Benelux (No. 611352) and Sweden (No. 314247). These trademark registrations predominantly are concerned with the provision of air travel and related goods and services.
The Complainant has generated substantial goodwill and reputation in the use of the its mark in the field of travel and leisure, and in particular, in services offered and delivered by means of the Internet. The mark EASYJET is well-known in the United Kingdom, Europe and beyond as denoting services provided by the Complainant and none other.
On the day after the subject domain name was registered by the Respondent, the Complainant received an e-mail which notified it that the subject domain had been registered and offered it for sale to the Complainant for the sum of £950 in order that the Complainant could "point it to your existing website to maximize all potential trafficÖ."
The e-mail was signed "Des White" and stated that it was sent on behalf of "our clients". It originated from email address "email@example.com" and was sent to two of the Complainantís employees who are responsible for the administration of domain names and whose e-mail addresses appear on numerous publicly available WHOIS records. The transmitting e-mail address for the White Email appears as the contact e-mail address provided for Mark Morton, Administrative and Billing Contact for the subject domain name, and in other accounts that Mr. Morton has established with the Registrar.
Mr. Morton or Marie Claire is the contact person for a large number of domain names which comprise famous trademarks including: "financialtimesonline.com", "smirnoffonline.com", "bacardionline.com", "btinternetonline.com", "dailytelegraphonline.com", "saatchiandsaatchiplc.com", "saatchisaatchi.com", "budwassup.com", "suzukiireland.com" and "uniroyalonline.com".
The Complainant has not authorized the Respondent to use the subject domain name and the Respondent has made no active use of it.
7. Partiesí Contentions
The Complainant relies on the fact that in previous proceedings under the Policy the Administrative Panel has acknowledged that the Complainant has substantial rights in its mark EASYJET and that the mark is well-known in a number of jurisdictions, including Europe and the United States.
The Complainant says that the subject domain name is identical and confusingly similar and says that is it distinguished from the Complainantís rights only by the addition of the word "online".
The Complainant asserts that the Respondent does not have a legitimate interest in the subject domain and points to the fact that it has made no use of it other than to offer for sale.
Bad faith is said to be established by the course of conduct in this case and the fact that the Respondent is connected to significant "cybersquatting" activity.
The Respondent has taken no position in this proceeding.
8. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove that:
i) the domain name is identical or confusingly similar to a service mark in which the Complainant has rights;
ii) the Respondent has no legitimate interest in respect of the domain name;
iii) the domain name has been registered and is being used in bad faith.
Paragraph 4(b) provides for the implication of evidence of bad faith in a number of circumstances:
i) circumstances that indicate that 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 trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondentís documented out-of-pocket costs directly related to the domain name;
(ii) registration of 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 the Respondent has engaged in a pattern of such conduct;
(iii) registration of the domain name primarily for the purpose of disrupting the business of a competitor;
(iv) by using the domain name, intentionally attempting to attract, for commercial gain, Internet users to the Respondentís 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 the web site or location or of a product or service on it or a location.
These are illustrative and do not represent the only circumstances from which may arise evidence of bad faith.
The Complainant refers to a number of decisions of domestic courts. It recognizes that, while this is often very helpful, they are not determinative in an ICANN domain dispute proceeding.
The resolution of this dispute takes place in the context of a consideration of the requirements of paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
Based on the material that has been referred to and filed in this proceeding, the Complainant has established that it has rights to the name "easyjet".
It refers to other ICANN decisions wherein its rights have been recognized. This Administrative Panel is not bound by such decision, which are based on the information provided to the other Panels, but they corroborate the material delivered in this proceeding.
Arguably, the subject domain name is identical, but it is, in any event, confusingly similar. It differs from the Complainantís rights only by the addition of the word "online" and ".com" at its end. The Complainant correctly notes that this word connotes the medium by which contact is made. In context, it is not a word that distinguishes.
The Administrative Panel is satisfied that the Complainant has established the requirements of paragraph 4(a)(i).
B. Respondentís Legitimate Interest
There is nothing in the material that supports the Respondentís legitimate interest in the subject domain name. Offering it for sale contemporaneously with Registration is strong evidence that it has no legitimate interest. Coupled with the absence of any other use, the conclusion is inevitable.
The Administrative Panel is satisfied that the Complainant has established the requirements of paragraph 4(a)(ii).
C. Bad Faith
The offer of sale in this case is almost conclusive of bad faith, both in its timing and in the amount.
An Administrative Panel is entitled to consider similar conduct, albeit with caution. It this case the link between the individuals involved and other apparent "cybersquatting" activities, corroborates the sale-offer inference of evidence of bad faith.
The Administrative Panel is satisfied that the Complainant has established the requirements of paragraph 4(a)(iii).
Based on the evidence overall and the findings made, the Administrative Panel concludes that the Complainant has established its case. The Complainant asks that the subject domain name be transferred to it.
The Administrative Panel so orders.
The Administrative Panel also orders that insofar as "[Unknown]" is a respondent in this proceeding, the case against it is dismissed.
Edward C. Chiasson, Q.C.
Dated: February 1, 2001