WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France v. Alvaro Collazo
Case No. D2003-0417
1. The Parties
The Complainant is Société Air France, of Roissy-CDG Cedex, France, represented by Meyer & Partenaires of France.
The Respondent is Alvaro Collazo, of Colonia, Uruguay.
2. The Domain Name and Registrar
The disputed domain name <arifrance.com> is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 29, 2003. On May 30, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On May 30, 2003, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 6, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was June 26, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 27, 2003.
The Center appointed Arne Ringnes as the sole panelist in this matter on July 4, 2003. 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. The Panel, in accordance with the Rules, paragraph 10(c) extended the decision due date to July 22, 2003.
4. Factual Background
"AIR FRANCE" is the trade name and trademark of the Complainant, used in commerce since 1933.
Société AIR FRANCE is for instance the registered owner of the following trademarks in France and the United States:
- "AIR FRANCE", French nominative trademark n° 1,703,113 of October 31, 1991, for all classes of 1957 Nice Agreement,
- "AIR FRANCE", French nominative trademark n° 99,811,269 of October 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 2, 1955, under n° 0610072.
With reference to the fact that the Respondent is residing in Uruguay, Complainant has submitted evidence relating to trademark registrations in URUGUAY:
- "AIR FRANCE", Uruguayan nominative trademark n° 231514 registered on July 19, 1979, for class 39 of 1957, Nice Agreement, last renewed on March 6, 2000,
- "AIR FRANCE", Uruguayan nominative trademark n° 235065 registered on December 27, 1968, for class 12 of 1957 Nice Agreement, last renewed on November 23, 2000,
Societé AIR FRANCE is one of the worlds major airline companies and is the third largest international passenger carrier and the fourth largest freight carrier. During 2002/2003 42,9 million passengers flew on flights operated by Societé AIR FRANCE. It also ranks second worldwide for aircraft maintenance. The Complainant is operating an international web portal – "www.airfrance.com", which by example had 463,000 visitors in April 2003.
On Respondent’s web site "www.arifrance.com" it is stated that "This domain is registered at DotRegistrar.com by a customer and parked temporarily until the owner establishes a permanent site". The site contains a number of hyperlinks to sites that apparently concerns travel services, such as the topics "France hotel" and "Europe travel".
5. Parties’ Contentions
Complainant contends that its trademark is confusingly similar to the domain name <arifrance.com>.
Both domain names are composed of the same 9 letters, moreover written in the same order except the second syllable "ri" of the disputed domain name, that corresponds to "ir" in the Complainant’s trademark. Indeed, the only distinction is a slight misspelling of the Complainant’s famous trademark consisting of the transposition of the letter "I" and "R" in the trademark "AIR FRANCE". In fact, the transposition of the letter "I" and "R" in the trademark "AIR FRANCE" does not eliminate any risk of confusion with the Complainant’s trademark. Complainant refers in this connection to WIPO Case No. D2002-0485, <lastminute-ari-france.net> - <lastminute-air-france.com>, in which registration was cancelled.
It is held that the risk of confusion is reinforced by Respondent’s use of the domain name to divert Internet users to a website that links to other commercial websites, some of which are plenty acting in the field of tourism and travel, as Complainant.
The Respondent is obviously engaged in a typosquatting conduct, practice that has already been condemned under UDRP principles by a number of administrative panel decisions.
With respect to the condition that the Respondent shall have no right or legitimate interests in respect of the domain name in question (Policy 4 (a) (ii)), the Complainant submits that to Complainant’s best knowledge, the Respondent is not currently and has never been known under the wording ARIFRANCE. Moreover, Société AIR FRANCE ascertains that Respondent is not in any way related to its business, is not one of its agents and does not carry out any activity for, or has any business with it. Société AIR FRANCE has never given any authorization to Respondent to make any use, nor apply for registration of the domain name in issue.
As a consequence, the Respondent has not engaged in any action that shows it has right or legitimate interests in domain name at stake. On the contrary – Complainant argues - Respondent uses the domain name <arifrance.com> to confuse and divert Internet users to other websites through a posting of links and advertising, including "pop-up" windows advertising.
Finally, Complainant contends that the domain name is registered and used in bad faith. In this respect it is contended that Société AIR FRANCE has previously demonstrated the strong reputation and the widely known character of its mark throughout the world for a long time and that, as stated in WIPO Case No. D2001-0020 regarding <guinessbeer.com>, the notoriety of a Complainant’s trademark creates a prima facie presumption that the Respondent registered the domain name "for the purpose of selling it to Complainant or one of its competitors, or that it was intended to be used in some way to attract for commercial gain users to the website by creating a likelihood of confusion with Complainant’s mark."
Respondent has registered said domain name precisely because he knew the well-known character of the trademark "AIR FRANCE", for the only purpose of generating commercial gain by intentionally and misleadingly divert users away from Complainant’s international web portal, and profit of Internet traffic from Internet users seeking société AIR FRANCE’s official website "www.airfrance.com".
In this respect it is pointed out the fact that tourism is one of the most profitable business on the Internet, and consequently one of the field which generates the most important traffic.
Complainant also argues that Respondent’s operating of the active website www.arifrance.com constitutes bad faith use. In this respect it is alleged that Respondent uses the disputed domain name to divert Internet users to a website that links to other commercial websites, some of which are plainly acting in the same field of tourism and travel as the Complainant, and contain advertisements, including "pop-up" windows advertisements. By diverting consumers to commercial websites selling products and services in the field of tourism and travel which is exactly the same sphere in which société AIR FRANCE is acting, Alvaro Collazo has no other purpose but benefit illegally from the fame and renown of Complainant’s trademark.
On this basis the Complainant requests that the domain name shall be transferred to Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Complainant shall prove that it has rights in the trademark AIR FRANCE and that the domain name <arifrance.com> is identical or confusingly similar to the trademark AIR FRANCE.
Undoubtedly, AIR FRANCE is a trademark which is protected for Complainant. This is proved by the submission of several trademark registrations in, inter alia, USA and France as referred to in the Section 4 above. Indeed, it has been held in previous WIPO decisions that the Complainant "has used the mark extensively and the mark has acquired considerable fame and recognition", see WIPO Case No. D2002-0158 <my-airfrance.com> and that the AIR FRANCE "is a famous trademark"- see WIPO Case No. D2002-0028 <airfrance-delta.com> and <airfrance-delta.net>.
The question which needs to be discussed is whether the domain name <arifrance.com> is confusingly similar to the trademark AIR FRANCE. In the disputed domain name the letters "i" and "r" are transposed. Whether this is a "common misspelling" as argued by Complainant is not fully substantiated, however it may be some merits to the argument, in light of evidence submitted by Complainant showing that Respondent in its list of UDRP Proceedings mispells <lastminute – air – france.com> as <lastminute – ari – france.com>. Irrespective of this, it is the Panel’s view that the slight typographical distinction between the disputed domain name and the trademark AIR FRANCE does not distinguish the domain name significantly from the trademark. Especially when taken into account the undisputed fame and recognition of the trademark AIR FRANCE, it is in the Panel’s opinion not doubtful that the domain name may be confused with the trademark.
As an additional consideration, the Panel refers to the fact that the present case is a typical "typosquatting" and a number of "typosquatting" cases have been decided under the Rules, and although the similarity between the marks and domain names in question differs, the practice indicates that domain names that are simply based on misspellings of trademarks and service marks often are regarded as confusingly similar.
Hence, the Panel concludes that the first condition under the Rules is satisfied.
B. Rights or Legitimate Interests
The Complainant alleges that to its best knowledge, the Respondent is not currently and has never been known under the wording ARIFRANCE. Moreover, it is ascertained that Respondent is not in any way related to Complainant’s business, is not one of its agents and does not carry out any activity for, or has any business with it. Complainant has never given any authorization to Respondent to make any use, nor apply for registration of the domain name in issue.
Respondent has not disputed these factual allegations, and based on the facts of the case the Panel has no reason to believe that these facts are not true.
Thus, the Panel concludes that Complainant has proved also the second element of the Rules.
C. Registered and Used in Bad Faith
The Panel finds that the fact that the Respondent has registered a domain name which only differs from the well known mark AIR FRANCE by a typographical misspelling in itself strongly indicates that the domain name is registered in bad faith. Taken into account that Respondent is not known under the name, nor has any links to the name – as far as the facts of the case shows, it is evidenced in the opinion of the Panel that the domain name has been registered in bad faith.
With respect to the condition that the domain name shall be used in bad faith, the Panel refers to the fact that the domain name is used for a web site which contains a number of hyperlinks to web sites offering inter alia travel services. This clearly shows that the domain name is used to attract for commercial gain Internet users to other on – line locations by creating a likelihood of confusion with the trademark AIR FRANCE, see the Rules, paragraph (c)(iii).
On Respondent’s web site "www.arifrance.com" it is stated that "This domain is registered at DotRegistrar.com by a customer and parked temporarily until the owner establishes a permanent site". This does not alter the conclusion that the domain is used in bad faith as the Respondent has a responsibility for the content that is posted at his site.
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 <arifrance.com> be transferred to the Complainant.
Dated: July 22, 2003