WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Koninklijke Luchtvaart Maatschappij N V v. Excelsa Coop
Case No. D2001-1274
1. The Parties
The Complainant is Koninklijke Luchtvaart Maatschappij NV (KLM Royal Dutch Airlines) of Amsterdamseweg 55, 1182 GP Amsterdam, the Netherlands.
The Respondent is Excelsa Coop of Zsombo, Szegedi ut 065/158, 6792 Hungary (P.O. Box 932, Szeged,6701 Hungary).
2. The Domain Name and Registrar
The domain name is <klm.info>, registered with Namebay of 24 boulevard Princesse Charlotte 98000, Monaco.
3. Procedural History
(1) The Complaint in Case D2001-1274 was initially filed by E-mail on October 15, 2001, and by hard copy on October 25, 2001, but there were deficiencies which required correction. A version of the Complaint which complied with the formal requirements of the Rules and Supplemental Rules of the Uniform Domain Name Dispute Resolution Policy was filed on November 5, 2001.
(2) The <Afilias.info> Whois Database print out for the Domain Name at issue on October 12, 2001, annexed to the initial Complaint, gave the Registrant’s name as Giovanni Bertotto and the Registrant Organisation as Excelsa Coop of the above address. However at that date the administrative, technical and billing contact was named as Stephano Trabalza of Morphos Ltd of Szatymazi Utca 2b, Szeged, 6724 Hungary. By October 26, 2001, when the WIPO Arbitration and Mediation Center received an answer to its request for confirmation of the details of the Registration from the Registrar, it was informed that the administrative and technical contact had become the Registrant, Giovanni Bertotto of Excelsa Coop.
(3) While some difficulty was experienced by the Complainant in securing delivery of the Complaint to the Respondent, on November 7, 2001, the WIPO Center despatched copies to Mr. Bertotto at Excelsa (which could not be delivered to its address given above) and to Mr. Trabalza at Morphos (which was delivered to its address). In the name of Excelsa Coop, Mr. Bertotto submitted a Response on November 20, 2001, which acknowledged receipt of the Complaint on November 7, 2001. This Response, which was filed in due time, accordingly accepts that Excelsa Coop is the correct Respondent to these proceedings.
(4) Payments for filings were properly made.
(5) The Administrative Panel was properly constituted, the Panelist having submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
(6) The date scheduled for issuance of a decision is January 3, 2002.
(7) No extensions have been granted or orders issued in advance of this Decision.
(8) The language of the proceedings is English.
4. Factual Background
(1) The Complainant is widely known as the leading Dutch airline, KLM. It is stated to hold registered trademarks for this name all over the world. The only example annexed to the Complaint, however, is of the Community Trademark Registration of March 3, 1999, consisting of KLM with a logo in light blue for goods and services. It is registered in Classes 35, 36, 38, 39 and 42 which include airline services, travel arrangement and hotel and catering services. The Complainant also states that it holds registrations for <klm.com>, <klm.net> and <klm.org>, along with ‘countless’ cctld’s incorporating ‘klm’.
(2) The Complainant’s agent applied to register the domain name in issue on August 8, 2001, but on September 18, 2001, the registration was granted to the Respondent.
5. Parties’ Contentions
While the Complaint has not been written or presented in a form which makes it straightforward to unravel, the contentions relating to the UDRP requirements may be expressed as follows:
(1) On the basis of the evidence and assertions referred to in Paragraph 4(1) above, the Complainant has a very wide reputation in the trade name and mark, ‘KLM’ for its airline and associated businesses.
(2) In essence the domain name in issue is identical with or confusingly similar to that name and mark.
(3) The Respondent acquired the domain name in issue primarily for the purpose of selling, renting or otherwise transferring it to the Complainant or one of its competitors for consideration in excess of its out-of-pocket costs directly related to the domain name.
(4) The Respondent intentionally attempted to attract Internet users to its website for financial gain by creating a likelihood of confusion with the Complainant’s mark.
(5) The Respondent has no rights or legitimate interests in respect of the domain name; if it did it would not want to sell or lease the domain name to the Complainant for a profit.
The evidence for assertions (3), (4) and (5) is said to be found in two E-mails annexed to the Complaint:
- E-mail A (sent on October 2, 2001) is from Stefano Trabalza of Morphos Ltd and is addressed to KLM Royal Dutch Airlines Sam Marshall. After introducing the new prospects of <.info> domains, the letter states, "Herewith we offer You that our firm has the intention of renting <klm.info> name. You can take advantage of our offer for a 3 month period at a reduced price, 2.900$."
- E-mail B (sent October 9, 2001) is from Dipl Ing. Alexander Schubert, Saargemuenderstr. 40, D-14195, Berlin and is sent to Gerard Bakker@klm.com. After stating that "the domain <klm.info> is currently registered by my Hungary Friend Stephano Trabalza," the writer claims as the innocent intent behind this registration that it was the name of their sport club. He proceeds to outline in detail the terms on which he would organise the transfer of the domain name to the Complainant. He claims that two firms, one from the UK and the other Japanese, are already interested and that the highest bid has been 130.000 US $. He therefore seeks from the Complainant 140.000 US $ and says he can guarantee that sum "until Friday noon, after that day the domain may be sold or more expensive."
The following procedural objections have been raised to the Complaint:
- that the Complainant did not contact the Respondent before or after lodging the Complaint;
- that the Respondents initially named by the Complainant were not Excelsa Coop;
- that the Complaint was not received by the Respondent by October 15, 2001, the date on which it was stated to have been sent or transmitted to the Respondent.
The following substantive points are made in response to the Complaint:
(1) However well known the Complainant’s name may be in the world at large, it has no trademark registration for it in Hungary. If the Complainant considers the domain name in issue to be so important it should have registered it during the protected "Sunrise" period for <.info> names, as provided under the ICANN Rules.
(2) The domain name in issue is similar but is by no means identical to the mark ‘KLM’. There are, moreover, several companies which use that name, "eg. Klmtech, klm- lab etc."
(3) The domain name has not been registered and used in bad faith as is evidenced by the use to which it has been put which is "a display which can be used by anyone as a service free of charge." This forms part of Excelsa’s Internet development businesses. The aim is to provide a website enabling visitors to establish contact companies with identical names ("Eg <www.klm.com>, <www.klm-lab.com>, www.klmtech.com") in an easier and simpler manner free of charge. The service was established before receipt of the Complaint.
(4) The Respondent is not a competitor of the Complainant and does not intend to disturb the Complainant’s business or mislead its customers. The Respondent did not acquire the domain name in issue "with intent of commercial gain."
(5) The Respondent refuses to acknowledge E-mails A and B. Allegations in the complaint which are based upon one or both are accordingly unsubstantiated.
6. Grounds for Decision
(1) The procedural objections raised by the Respondent are rejected. Under the Rules there is no obligation on the Complainant to make personal contact with the Respondent at any time, nor must the Complaint be received by the Respondent on the day that it is sent. As indicated under Paragraph 2 above, the Complaint was issued initially against the two individuals then recorded as Registrant and Contact. Only subsequently did the changed registration become evident. The Response accepts that the presently named Respondent is the correct entity against whom the proceedings should be brought. No allegation is made that it has been substantively hindered in submitting that Response and so no prejudice has arisen.
(2) The Complainant has sufficiently shown that it has rights in its trade or service mark, "KLM". The Respondent has made no serious attempt to deny that the mark gives the Complainant a worldwide reputation, other than by showing that it has no trademark registration in Hungary, the country in which the Respondent has its address. It is not, however, required by the UDRP that the rights relied upon should arise solely in that country and many decisions under the Policy have been based on registered and unregistered rights arising elsewhere. Moreover, as the Policy has been repeatedly interpreted, the comparison between the mark and the domain name is to be made without taking account of the tld element – in this case, <.info>. The two are accordingly identical. The fact that similar marks and domain names exist which are employed by other businesses is not relevant in establishing this first element of liability under the Policy.
(3) As to the requirements that the Respondent be shown to have registered and used the domain name in bad faith and to have no legitimate right or interest in it, there is no evidence that it used the domain name so as to injure the Complainant’s business by, for instance, confusing potential customers. Accordingly both these questions turn very largely on whether E-mails A or B must be treated as having been sent with its authority and on its behalf. If either E-mail binds the Respondent, there is strong evidence that (i) the prime purpose of acquiring the domain name in issue was to demand a more-than-cost sum from the Complainant for transfer of the name and that (ii) the claimed purpose of establishing an easy reference website for domains which include ‘KLM’ was no more than a flimsy pretext.
(4) E-mail A contains an offer to the Complainant to rent it the domain name at issue at a reduced price for three months of 2.900 $. The evident implication of this offer is that there will be rental charges for further periods at a rate which is not likely to be less than that amount. The amounts being sought must therefore be taken to be well in excess of the direct cost of obtaining and maintaining the domain name. The writer, Mr. Trabalza, was apparently one of the two individuals involved in the first registration of the domain name, as noted in Paragraph 2 above. It is therefore perfectly reasonable to assume that E-mail A was sent on behalf of all who were named in that registration. Excelsa Coop and Mr. Bertotto, who is the individual now claiming authority to act for it, were the initial registrants. The Response has said nothing to explain the initial naming of Mr. Trabalza or why his E-mail on behalf of the registrants should be regarded as sent without authority. A repudiation of the E-mail in the Response cannot alter the earlier relationship. I accordingly find in E-mail A a clear intent to offer the domain name to the Complainant at an above-cost price. No explanation is given in this E-mail of any legitimate reason for seeking the domain name registration. I therefore infer that the dominant purpose from the outset was to carry out that intent.
(6) E-mail B does not come from a person at any stage named as a Registrant or Contact. The writer, Mr. Schubert, claims to be Mr. Trabalza’s friend and therefore to be negotiating a transfer for a very substantial price indeed on his behalf. It seems inherently unlikely that the writer would be intervening in such a significant way if it were not by arrangement with Mr. Trabalza. It is to be noted that again the Response offers no elucidation which would help settle whether there was, or was not, authority to act for Excelsa in the matter. The matter cannot be finally resolved in these summary proceedings. One consequence is that the Respondent, by its repudiation of this document, cannot rely upon it to show that the motivation for the registration was to support a "KLM" sports club.
(7) The Respondent claims that the registration has been obtained and used in good faith for a purpose which supplies it with a legitimate interest in that it has been making available on its website a free linking service to the home sites of entities which have "KLM" in their names. Apart from the Complainant, two businesses are currently so identified: KLM Capital, a business investing in technology corporations, and KLM Orthotic Laboratories, which is concerned with foot orthotics and insoles. The Respondent gives no details of other such services which it may be supplying to Internet users and it is difficult to see what real value this one activity could afford them. Given that the Respondent cannot deny responsibility at least for E-mail A, it is not possible to accept that this explanation of the Respondent’s use of its website is anything other than minimal camouflage for a cyber-squatting operation planned from the outset.
For these reasons the Panel decides, in accordance with the Uniform Domain Name Dispute Resolution Policy, Paragraph 4, that the domain name, <klm.info>, should be transferred forthwith to the Complainant.
William R. Cornish
Dated: January 15, 2002