WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France v. Patrick Ory
Case No. D2003-0628
1. The Parties
The Complainant is Société Air France, Roissy CDG, France, represented by Meyer & Partenaires, France.
The Respondent is Patrick Ory, Egmond-Binnen, Netherlands and/or Cancun, Mexico.
2. The Domain Name and Registrar
The disputed domain name <airfranceairlines.com> is registered with CSL Computer Service Langenbach GmbH dba Joker.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 13, 2003. On August 13, 2003, the Center transmitted by email to CSL Computer Service Langenbach GmbH dba Joker.com a request for registrar verification in connection with the domain name at issue. On August 14, 2003, CSL Computer Service Langenbach GmbH dba Joker.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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on August 22, 2003. The Center verified that the Complaint together with the amendment to 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") and notified the parties of this on August 25, 2003.
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 August 25, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was September 14, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on September 17, 2003.
The Center appointed Derek M. Minus as the Sole Panelist in this matter on September 24, 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.
4. Factual Background
The following uncontested and unchallenged facts appear from the Complaint and the supporting documents submitted with it:
The Complainant is one of the worldís major airline companies based in France and tracing its origins back to 1933. It is the third largest international passenger carrier and the fourth largest freight carrier. It also ranks second worldwide for aircraft maintenance.
The Complainant currently operates the largest medium-haul network in Europe, in terms of daily flights: 1,700 daily flights to 200 cities in 83 countries. During the year 2002/2003 42.9 million passengers flew on flights operated by the Complainant. The Complainant currently employs more than 49,000 people worldwide and its turnover for 2002/2003 was close to 12.6 billion Euros.
The Complainant is one of the founders of the Skyteam Alliance which since 2000 has featured six major international airlines, including in addition to the Complainant: Delta Airlines, Aero Mexico, Czech Airlines, Alitalia and Korean Airlines. Skyteam Alliance serves 174 millions passengers annually, and is the first airline alliance in terms of the number of non-stop flights between the USA and European destinations.
The Complainant is the registered owner of a large number of trademarks consisting of or including the words AIR FRANCE in a majority of countries in the world. The Complainant has websites under several generic and country top level domain names e.g. "www.airfrance.com" an international web portal in operation since 1997, <airfrance.com.mx> in Mexico and, <airfrance.com.nl> in the Netherlands.
On January 23, 2003, the Complainant was informed of the registration of the domain name <airfranceairlines.com> by the Respondent who had registered the domain name on April 10, 2002.
The domain name <airfranceairlines.com> forwards to an active website featuring the "Cheap Travel Network." This website displays a web engine to compare various travel offers from twenty travel companies, airline companies or travel agencies, all of which are competitors with Complainant.
The web engine available at "airfranceairlines.com" is powered by a company named QIXO.COM. This company offers webmasters affiliation to earn money based on revenues generated by QIXO.COM from sales to customers who come from the affiliates websites. QIXO.COM advertises on its website, the revenues that affiliates can receive based on the number of (airline or cruise tickets) sold per month. From the traffic generated by the affiliate to QIXO.COM the Respondent may earn from US$3 to US$5 per ticket sold, simply by creating traffic to QIXO.COM from its website(s), in particular the website to which <airfranceairlines.com> defaults.
The Complainant noted that the Respondent is creating traffic by diverting Internet users from the websites of famous companies, through its use of infringing domain names, for instance: <holidayinnhotels.org>, <lufthansa-airlines.net>, <hilton-hotel-reservation.com>, <marriot-hotels.com>, <us-airways.net>, <twaairlines.org>, <british-air-ways.com>, <qantas-airlines.com>, and <al-italia.com>. As well, the Respondent in these proceedings was also the Respondent in UDRP proceedings in relation to the domain names: <alamo-carrental.com>, <national-carrental.com>, <delta-airlines-fares.com> and <deltaairlinesreservation.com>, <dollar-carrental.com>, <dollar-rent-a-car.com>, <bestwesternhotels.org>, <avis-carrental.com>, <holidayinnhotels.org>, <thrifty-car-rentals.com>, <europe-car.com>.
5. Partiesí Contentions
The Complainant is the holder of a famous trademark AIR FRANCE which is registered worldwide and has been used in commerce since 1933. Specifically, the Complainant states that it holds the rights to:
AIR FRANCE, French nominative trademark nį 1.703.113 of October 31, 1991, (on renewal) for all classes of 1957 Nice Agreement;
AIR FRANCE, French nominative trademark nį 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 on August 2, 1955, under nį 0610072.
In particular the Complainant notes that it holds trademarks in Mexico, the country which the Respondent gives as its domicile:
AIR FRANCE and flying horse device, Mexican figurative trademark nį 351 244 registered on March 16, 1988, for class 39 of 1957 Nice Agreement, last renewed on March 16, 2003, and in force until 2013.
AIR FRANCE and device, Mexican figurative trademark nį 277 144 registered on November 16, 1981, for class 39 of 1957 Nice Agreement, last renewed on November 16, 2001, and in force until 2011.
And the Netherlands, the country where the Respondent seems to be actually located:
A Benelux figurative trademark registration, AIR FRANCE + winged horse nį 158 674 in December 30, 1987, with first use in 1933; and
A Benelux figurative trademark registration, AIR FRANCE + stripy device nį 061415 registered in December 30, 1987, with first use in 1976.
The Complainant contends that its trademark AIR FRANCE is a well known and widely known, famous mark and has been found to be so by several courts of justice as well as Panelists in several previous UDRP cases, especially: Air France v. Kitchkulture, WIPO Case No. D2002-0158, concerning <my-airfrance.com>, Société Air France v. Van Wijk & Mesker Holding BV, WIPO Case No. D2002-0028, concerning <airfrance-delta.com> and <airfrance-delta.net>, Société Air France v. The World of Travel, WIPO Case No. D2002-0485, concerning <lastminute-air-france.com> and <lastminute-air-france.net> and Société Air France v. Alvaro Collazo, WIPO Case No. D2003-0417, concerning <arifrance.com>.
The Complainant further argues that Respondent has no rights or legitimate interest to use the disputed domain name, because:
The Respondent is not currently and has never been known under the name "AIR FRANCE AIRLINES";
The Respondent is not in any way related to the Complainantís business, is not one of its agents and does not carry out any activity for, or does not have any business relationship with it;
The Complainant has never given any authorization to the Respondent to make any use of its trademarks, nor apply for registration of the domain name <airfranceairlines.com>.
The Respondent did not provide a reply to the Complainantís contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant carries the burden of proving, on the balance of probabilities, each of the following three elements:
(i) that the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant holds rights; and
(ii) that the Respondent has no rights or legitimate interests in the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith by the Respondent.
A. Identical or Confusingly Similar
The Panel is satisfied on the basis of the material submitted, that the Complainant is the owner of the trademark AIR FRANCE, which the Panel finds, is a famous trademark.
The domain name registered by the Respondent is identical to Complainantís registered trademark, to which a generic top-level domain name ".com" and the word "airlines" have been added. Rather than seeking to distinguish the domain name from the Complainantís trademark, this combination clearly compounds the likelihood of confusion as it is suggestive of the very business carried on by the French airline company.
The Panel adopts the findings in Quixtar Investments, Inc. v. Scott A. Smithberger and QUIXTAR-IBO, WIPO Case No. D2000-0138, that the incorporation of a Complainantís well-known trademark in the registered domain name is sufficient to find the domain name confusingly similar to the Complainantís trademark.
As decided in Ansell Healthcare Products Inc. v. Australian Therapeutic Supplies Pty, Ltd., WIPO Case No. D2001-0110, the addition of a generic name to the Complainantís trademark does not avoid confusion. In particular, where the generic term is descriptive of the Complainantís products, it is more likely to increase confusion.
Therefore the Panel finds that the Complainant has satisfied the first requirement of proving that Respondent is the registrant of a domain name that is confusingly similar to the trademark owned by the Complainant.
B. Rights or Legitimate Interests
There is no evidence that the Respondent has any rights or legitimate interests in the disputed domain name. Furthermore, there is no evidence of any commercial relationship between the Complainant and the Respondent which would entitle the Respondent to use the trademark, in fact any such relationship is specifically disavowed by the Complainant.
The Complainant has not licensed or otherwise authorized the Respondent to use its trademark or to apply for any domain name incorporating the trademark. Therefore prior to any notice of this dispute, the Respondent had not used the domain name in connection with any bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy.
Nor is there any evidence that the Respondent is commonly known by the domain name or is making a legitimate non-commercial or fair use of the domain name within the meaning of paragraph 4(c)(ii) or (iii) of the Policy. Instead, the Complainantís evidence suggests that the Respondent has attempted to use the domain name for commercial gain.
By not submitting a response, the Respondent has failed to demonstrate, pursuant to paragraph 4(c) of the Policy, that it has rights or legitimate interests in the domain name. Consequently, the Panel concludes that the Respondent has no rights nor legitimate interests in the domain name given that there exists no relationship between the Complainant and the Respondent that would give rise to any license, permission or authorization by which the Respondent could own or use the domain name.
Therefore, the Panel concludes on the basis of the evidence of the Complainant has satisfied the second requirement, that the Respondent has no rights or legitimate interests in the domain name.
C. Registered and Used in Bad Faith
The Policy provides in paragraph 4(b) that certain circumstances, "in particular but without limitation," will be evidence of bad faith registration and use of a domain name.
In this matter circumstances that are relevant to such a finding are, as provided in paragraph 4(b)(iv), the use of a domain name to intentionally attempt to attract, for commercial gain, Internet users to a website or other on-line location, by creating the likelihood of confusion with the Complainantís mark as to the source, sponsorship, affiliation, or endorsement of its website or the location of a product or service on its website or location. As stated in earlier cases, the "Respondent has capitalized on Complainantís marks as well as reputation by registering and using confusingly similar domain names. According to Policy ß 4(b)(iv), evidence of bad faith registration is shown when registration of a domain name occurs in order to utilize anotherís well known reputation by attracting Internet users to the registrantís website, for commercial gain." See Dollar Rent A Car Systems Inc v. Patrick Ory, National Arbitration Forum Case No. FA0209000125229.
On the evidence before the Panel, the Respondent has registered the domain name at issue (and many other infringing domain names) with the clear intention of misleadingly diverting Internet users to a website that competes with the Complainantís services for the Respondentís personal gain. The nature of that benefit is identified by the affiliated site to which the domain name diverts. The service providers advertised at that site are all in competition with the Complainant. The opportunity of conducting business with the Complainant is not available from the very site to which a domain name that the Panel has found to be deceptively similar, diverts. Directing unsuspecting consumers to the Respondentís on-line location is evidence of bad faith by creating confusion with the Complainantís trademark, see Snapple Beverage Corp. v. Telmex Management Services, WIPO Case No. D2002-0114.
Further, in accordance with paragraph 4(b)(iii), a domain name will be held to have been registered and used in bad faith, if the domain name was registered primarily for the purpose of disrupting the business of a competitor. The Respondent did this by creating the likelihood of confusion with Complainantís trademark AIR FRANCE by registering a domain name containing the Complainantís trademark and combining it with the generic term "airlines" which describes the very business of the Complainant: see EthnicGrocer.com, Inc. v. Unlimited Latin Flavors, Inc., National Arbitration Forum Case No. FA 94385 (July 7, 2000) (finding that the minor degree of variation from the Complainantís marks suggests that the Respondent, the Complainantís competitor, registered the names primarily for the purpose of disrupting the Complainant's business); Fossil Inc. v. NAS, National Arbitration Forum Case No. FA 92525 (February 23, 2000) (finding that the Respondent acted in bad faith by registering the domain name <fossilwatch.com> and using it to sell various watch brands).
The Panel is satisfied that in accordance with the criteria set out under paragraph 4(b)(iii) and (iv) of the Policy that the Respondent registered and is using the domain name in bad faith.
It is therefore established that the Complainant has made out each of the three elements that it is required to prove.
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, <airfranceairlines.com>, be transferred to the Complainant.
Derek M. Minus
Dated: October 8, 2003