WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France v. Henry Chan
Case No. D2004-0239
1. The Parties
The Complainant is Société Air France, Roissy CDG Cedex, France, represented by Meyer & Partenaires, France.
The Respondent is Henry Chan, Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <airfranceholiday.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 March 29, 2004. On March 31, 2004, 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 April 1, 2004, 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 contact details for the administrative, billing, and / or 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 April 7, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was April 27, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of the default on April 28, 2004.
The Center appointed Joseph Dalby as the sole panelist in this matter on May 13, 2004. 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 Complainant is an airline passenger and freight carrier company established under the laws of France and operating internationally, with approximately 42 million passengers per year, and a turnover of over EUR 12.6 billion.
The Complainant trades in the names of, amongst others, "Air France" and "Air France Holidays." It has produced in its Complaint copies of trademark certificates for AIR FRANCE HOLIDAYS (registered in the United Kingdom), and AIR FRANCE (in France and the United States of America).
The Complainant is also the incumbent registrant for <airfranceholidays.com> and this is confirmed by a WHOIS search. The Panel notes that this domain name resolves to a live website advertising and offering for sale products and services commercialized under the registered trademark AIR FRANCE HOLIDAYS. The products and services include vacation packages comprising air travel together with accommodation, tourism, etc.
The Respondent is identified as Henry Chan at an address in the Bahamas. This information was obtained from a WHOIS search the Complainant executed prior to declaring its rights over the domain name, and is confirmed by the Registrar of the domain name. No information has been submitted about Mr. Chan's economic or personal activities.
The disputed domain name is, at the time of this decision, live but redirects and resolves to a search portal of indeterminate association.
5. Parties' Contentions
The Complainant refers to eighteen Administrative Proceedings, in relation to 109 domain names, in which Mr. Chan is cited as respondent, and in which the panel ordered the transfer of the domain name to the trademark holders. The Complainant relies on the pattern of conduct and interest by the Respondent in registering domain names that are identical or confusingly similar to trademarks owned by third parties.
The Complainant claims that its registered trademark AIR FRANCE is well and widely known throughout the world and easily recognizable as such, with several Courts of Justice and Administrative Panels acknowledging its well-known character. It submits that it is obvious that the domain name reproduces entirely the Complainant's trademark AIR FRANCE, and that in this respect the word "holiday" is merely descriptive of the Complainant's products and services. Accordingly, it submits, the domain name is confusingly similar to the trademark.
The Complainant claims that its registered trademark AIR FRANCE HOLIDAYS is reproduced and used in relation to a domain name by exactly the same name, and thus observes that the Domain is likewise confusingly similar to its trademark.
The Complainant claims that the Respondent has never been known under the name of AIR FRANCE nor is he related to the business of holidays. It observes that the domain name is not used for a bona fide offering of goods and services or with a legitimate noncommercial or fair use, but merely to attract and redirect Internet browsers and potential customers seeking information about the Complainant and its products or services.
Finally, the Complainant observes that the domain name was registered by the Respondent at a time that the Complainant's reputation and trademark was established and widely known throughout the world, and thus must have been registered in bad faith. It further submits that the deletion in the WHOIS entry for the domain name of all details identifying the Respondent, after the Respondent was put on notice of the Complainant's rights is further evidence of registration in bad faith. The Complainant contends that use in bad faith is estbalished by the operation of a web page gathering a lot of hyperlinks and pop-up windows diverting users to other commercial websites, and away from the Complainant's. The Complainant contends that this may be done for profit.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The domain name is governed by the Policy, by virtue of the contract between the Registrar and Registrant/Respondent.
The Complainant did not provide any name for the Respondent in the Title of the Proceeding nor in its Summary to Part V. Factual and Legal Grounds. According to paragraph 3(v) of the Rules, the Complainant is required to "Provide the name of the Respondent (domain name holder)..." Thus even in the absence of any Response from the Respondent, this irregularity might affect the admissibility of the Complaint. However, throughout the remainder of the Complaint, the Complainant makes numerous references to a Henry Chan as the Respondent and the incumbent registrant. The Registrar also confirms the incumbent registrant's identity as Henry Chan. Thus, the Respondent has been sufficiently identified, the failure to name the Respondent in the Title to the Proceeding is merely an error on the face of the record that has not and does not adversely affect the interests of Respondent. Accordingly, the Complaint is admissible.
The Respondent has been given an adequate opportunity to deal with the allegations against him and it is thus noted that the Respondent has not offered any contentions in rebuttal of the claims and contentions made by the Complainant.
A. Identical or Confusingly Similar
Although the trademark certificates supplied are not certified as identical to the original, in the absence of any challenge from the Respondent, they are deemed to be authentic.
The trade name AIR FRANCE is widely known and is protected as a registered trademark for the benefit of the Complainant. The trade name AIR FRANCE HOLIDAYS, although not as widely well known, is in any event protected by a registered trademark, again for the benefit of the Complainant.
The disputed domain name reproduces either in whole or almost in whole, each of the trade names relied upon by the Complainant. In both cases, the risk of confusion is that an Internet user or potential customer may unwittingly conclude that a website to which the domain name resolves is endorsed by the Complainant. Neither the discrepancy of a single "s" nor the semantic distinction between using the word "holiday" descriptively or subjectively to the main object (AIR FRANCE) can overturn the balance of probabilities that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
Taking the Complaint in its entirety, the Complainant has satisfactorily demonstrated a prima facie case that the Respondent has no rights to or legitimate interests in the domain name. In default of the Respondent adducing any evidence to rebut this contention, the Complainant has adequately proved this element.
C. Registered and Used in Bad Faith
It is noted that none of the scenarios in paragraph 4(b) of the Policy are made out or relied upon.
The Complainant would have the Panel decide that the extent of Complainant's international reputation, and the notoriety of the trademarks relied upon create a prima facie presumption that the Respondent registered the disputed domain name in bad faith. Whilst undoubtedly there will be circumstances when such a conclusion might be drawn, given that a Complainant must show bad faith on the part of the Respondent, the necessity to offer evidence in support of such bad faith implies that mere notoriety of the Complainant's trademark is not evidence of registration in bad faith that gives rise to such a presumption.
However, the failure by the Respondent to adduce any evidence of rights or legitimate interests in the disputed domain name is suggestive of bad faith. Had the Respondent demonstrably prepared to legitimately use the domain name for the purposes that he has been shown to pursue, he could not but have been aware of the Complainant's established reputation and the notoriety of the trademarks relied upon. Accordingly, it is reasonable to infer that he must have been aware that he would be participating in intra-brand competition (that is, vacation packages under the trademark AIR FRANCE) that requires authorization from the trademark holder to reproduce the trademarks referred to.
Separately, the Complainant refers to eighteen other administrative proceedings, involving 109 domain names in total, in which the Respondent is cited as respondent and in which the domain name in question was transferred to the relevant complainant. An inference of registration in bad faith is drawn from the pattern of conduct demonstrated.
Finally, it is noted that the Respondent has not offered a rebuttal of the inferences drawn. For these reasons, the Complainant has proved that, on the balance of probabilities, the domain name was registered in bad faith.
The Complainant has supplied printed screen shots of a portal website to which the domain name resolved, and pop-up pages that displayed thereon. The content displayed indicates that the website (whether described as permanent or temporary) is in competition with the Complainant's business. It appears that at the time of this decision, the content and style of the site has changed. But it is noted that the content and purpose of the site relied and continues to rely on the Complainant's trademarks to divert Internet traffic away from the Complainant's approved sites to those that are not approved but offer the same or similar products or services. It is accepted that the Complainant has not authorized the Respondent to reproduce or use the trademarks. Thus it has been adequately shown that the Respondent is using the disputed domain name in bad faith. This is further evidenced by an apparent (albeit refutable) intention on the part of the Respondent to conceal his identity.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that, in respect of the domain name, <airfranceholiday.com>:
(i) The domain name is identical or confusingly similar to a trademark in which Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the domain name;
(iii) The domain name has been registered and is being used in bad faith;
(iv) The domain name be transferred to Complainant.
Dated: May 21, 2004