WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Gulf Air v. Surash Kumer
Case No. D2007-0443
1. The Parties
The Complainant is Gulf Air, of Bahrain.
The Respondent is Suresh Kumar, of Ilford, Essex, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <flygulfair.net> is registered with Domaindiscover.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 22, 2007. On March 26, 2007, the Center transmitted by email to Domaindiscover a request for registrar verification in connection with the domain name at issue. . On March 26, 2007, Domaindiscover transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing its contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on April 19, 2007. 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”).
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 20, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 10, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 22, 2007.
The Center appointed Alistair Payne, Angelica Lodigiani and David Taylor as panelists in this matter on June 4, 2007. The Panel finds that it was properly constituted. Each member of 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.
On June 13, 2007, the Panel issued Procedural Order No. 1 to request that the Complainant file additional information in relation to the Complaint. The Panel granted a period of 7 days for this filing and then an additional 7 day period to allow the Respondent an opportunity to reply. In reply to the Procedural Order, the Complainant filed a print screen of the webpage to which the domain name <gulfair.com> conducted. The Respondent did not file any reply.
4. Factual Background
The Complainant is the national airline of the Kingdom of Bahrain and the Sultanate of Oman. It operates a fleet of 34 aircrafts.
The Complainant is the registered owner of the trademark GULF AIR in many countries worldwide including the United States of America, Greece, Italy, Ireland and Singapore. In the United Kingdom the trademark GULF AIR was registered on May 18, 1979.
The Complainant is the registered holder of the domain names <gulfair.com> and <gulfairco.com>.
The Respondent is the registered owner of the Disputed Domain Name.
5. Parties’ Contentions
The Complainant is the registered owner of the trademark GULF AIR and the domain names <gulfair.com> and <gulfairco.com>. The Complainant maintains that the Respondent has registered the Disputed Domain Name with the aim of causing confusion in the eyes of Internet users and creating the impression that the Complainant and the Respondent are affiliated.
The Disputed Domain Name is not currently in use. However, the Complainant contends that the Respondent’s prior use of the Disputed Domain Name damaged the Complainant as, at one point, the Disputed Domain Name resolved to a webpage which stated that a “web site is coming soon” and contained references to direct competitors of the Complainant’s services. The Complainant asserts that this was not a legitimate use of the Disputed Domain Name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
If the Complainant is to succeed, it must prove each of the three elements referred to in paragraph 4(a) of the Policy, namely that:
(i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used in bad faith.
The Panel will proceed to establish whether the Complainant has discharged the burden of proof in respect of each of the three elements referred to in paragraph 4(a) of the Policy.
A. Identical or Confusingly Similar
The Disputed Domain Name is differentiated from the Complainant’s mark GULF AIR by the inclusion of the word “fly”. However, the Panel finds that the dominant element of the Disputed Domain Name is the phrase “gulfair” which is identical to the Complainant’s mark. The additional word “fly” in the Disputed Domain Name is generic in the Complainant’s area of business and as such could not make the Disputed Domain Name different enough from the Complainant’s trademark. In this regard the Panel cites the case of Wedgwood Ltd. Corp. v. JIT Limited WIPO Case No. D2004-1025 where the panel found that the inclusion of the word “china” in the domain name at issue was not sufficient to prevent the panel from reaching a finding that the domain name at issue was confusingly similar to the complainant’s registered trademark.
Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark and therefore that the Complainant fulfills paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Respondent has not filed a response in this case. As a result, the Panel finds no evidence to support that it is commonly known by the Disputed Domain Name.
Currently the Disputed Domain Name does not resolve to any webpage. The Complainant has provided a screen shot of the webpage that was in operation at the Disputed Domain Name previously. It appears from this page that the Respondent was using the Disputed Domain Name to divert Internet users to a webpage advertising the services of competing airlines. This is not a legitimate or non-commercial fair use of the Disputed Domain Name. This same screen shot provides no evidence from which the Panel could infer that preparations were made to use the Disputed Domain Name for a bona fide purpose. On the contrary, absent any Respondent’s contrary indication, the use of someone else’s known trademark as a domain name to advertise competitor’s activities and to provide links to competitors’ websites, is evidence of a non legitimate and unfair use of the domain name.
The Panel finds that the Complainant fulfills paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Under paragraph 4(b)(iv) of the Policy it shall be deemed to be evidence of registration and use in bad faith if the use of a domain name intentionally attempts to attract, for commercial gain, Internet users to a site by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of a website.
The Complainant is an international airline that was founded 57 years ago and is very well known. As stated above, the Disputed Domain Name resolved to a webpage at which the names of competing airlines were advertised to consumers. The apparent intention of the Respondent was to divert consumers to the websites of other airlines. The Panel can only infer that the Respondent attempted to make and/or made some commercial gain as a consequence of consumers following links to advertising airlines or possibly from advertising on the webpage. There is no evidence to contradict this inference and the Respondent’s conduct appears to the Panel to be a classic case of cyber squatting.
Accordingly, the Panel finds that paragraph 4(b)(iv) of the Policy is satisfied and that the Respondent has registered and used the Disputed Domain Name in bad faith under paragraph 4(a)(iii) of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(a) of the Policy and 15 of the Rules, the Panel orders that the domain name <flygulfair.net> be transferred to the Complainant.
Dated: June 27, 2007