World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Qantas Airways Limited v. Thinnakorn Chamai

Case No. D2010-1240

1. The Parties

The Complainant is Qantas Airways Limited, Mascot, Australia, represented by Minter Ellison, Australia.

The Respondent is Thinnakorn Chamai of Sakon Nakhon, Thailand.

2. The Domain Name and Registrar

The disputed domain name <jetstarpacific.com> ("the Domain Name") is registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 28, 2010. On July 28, 2010, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On July 28, 2010, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the 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 August 6, 2010. 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” or “UDRP”), 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 August 10, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 30, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 1, 2010.

The Center appointed Dawn Osborne, Philip N. Argy and Syed Naqiz Shahabuddin as panelists in this matter on September 28, 2010. 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.

4. Factual Background

The Complainant is a leading airline company which wholly owns a low cost airline which has been operated under the name Jetstar since 2004. The Complainant is the owner of registered trade marks for the mark JETSTAR and JETSTAR PACIFIC for, inter alia, air travel services, across the world including Thailand, a destination to which it operates flights. The Respondent who became the owner of the Domain Name in October 2009 is based in Thailand, is offering the Domain Name for sale and has used the Domain Name to display sponsored links for various travel companies.

5. Parties’ Contentions

A. Complainant

The Complainant's submissions can be summarised as follows:

The Complainant is a leading airline which wholly owns a low cost airline which has been operated under the name Jetstar since 2004. The Complainant is the owner of registered trade marks for the mark JETSTAR and JETSTAR PACIFIC for, inter alia, air travel services across the world including Thailand, a destination to which it operates flights. The airline received 8 awards between 2007 and 2009. The JETSTAR trade mark has been extensively advertised, including in Thailand since 2005. It is used as part of the livery of the commercial aircraft for Jetstar, Jetstar Asia and Jetstar Pacific. The Complainant publishes a magazine under the Jetstar brand and operates a website at “www.jetstar.com” from which Thai customers are able to book flights. The Complainant has a considerable international reputation and customers will instantly assume the Domain Name is associated with the Complainant as it clearly incorporates and is confusingly similar to the Complainant's JETSTAR PACIFIC and JETSTAR trade marks.

The Respondent has no rights or legitimate interests with respect to the Domain Name. The Complainant has never granted the Respondent the right to use the JETSTAR or JETSTAR PACIFIC marks, the Respondent does not own any trade mark applications or registrations containing these names, nor does it appear to have registered any company names containing these names. The Respondent appears to be an individual and as far as the Complainant is aware the Respondent does not conduct any legitimate or non commercial business activities. As at July 27, 2010 the website associated with the Domain Name displayed sponsored listings for travel and airline companies. Accordingly the Respondent must have been aware of the Complainant's rights in its trade marks.

The Respondent currently has the Domain Name advertised for sale. Additionally in view of the Complainant's strong reputation in JETSTAR the Respondent would have known about it and registered the Domain Name in order to prevent the Complainant from registering its name in a corresponding domain name. Finally the website has displayed sponsored listing for various travel companies which has been done to attract Internet users to the web site by creating a likelihood of confusion between the services offered on the site and the Complainant. Accordingly the Respondent has registered and is using the Domain Name in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the Complainant must prove that:

- The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and

- The Respondent has no rights or legitimate interests in respect of the Domain Name; and

- The Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Domain Name consists of the Complainant’s JETSTAR PACIFIC registered mark and the generic top level domain “.com”. The Complainant also owns registered trade marks for JETSTAR and the addition in the Domain Name of the generic word "pacific" reflecting a geographical area in which the Complainant operates does not serve to distinguish the Domain Name from the Complainant's JETSTAR trade mark. As such the Domain Name is identical to the Complainant's JETSTAR PACIFIC trade mark and confusingly similar to its JETSTAR trade mark for the purpose of the Policy.

B. Rights or Legitimate Interests

The Panel finds that the Respondent has not rebutted the Complainant’s prima facie case that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name.

Indeed, the Respondent has not filed a Response, does not appear to have any trade marks associated with JETSTAR PACIFIC, does not appear to be commonly known by this name and does not have any consent from the Complainant to use this name. It does not appear to have used the Domain Name for any bona fide offering of services. Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Disputed Domain Name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four non exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including:

- "circumstances indicating that [the respondent has] registered or [has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [its] documented out-of-pocket costs directly related to the domain name;" (paragraph 4(b)(i)).

- "[the respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided [the Respondent has] engaged in a pattern of such conduct" (paragraph 4(b)(ii)).

- “by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on [its] web site or location.” (Paragraph 4(b)(iv)).

The Domain Name has been used to link to commercial sites competing with the Complainant’s business. Accordingly, it appears that the Respondent has intentionally attempted to attract for commercial gain Internet users to its web site, by creating confusion as to the source, sponsorship, affiliation or endorsement of products or services on its web site. The Panel, therefore, finds that bad faith has been demonstrated under paragraph 4(b)(iv) of the Policy.

Additionally the Respondent appears to be offering to sell the Domain Name for a sum far in excess of usual registration fees for domain names without any explanation. As such the Panel, therefore, finds that bad faith has also been demonstrated under paragraph 4(b)(i) of the Policy.

There does not appear to be a pattern of conduct and the Panel does not make any finding under paragraph 4(b)(ii) of the Policy.

The Panel finds that the Domain Name has been registered and is being used in bad faith.

7. Decision

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 <jetstarpacific.com> be transferred to the Complainant.

Dawn Osborne
President Panelist

Philip N. Argy
Panelist

Syed Naqiz Shahabuddin
Panelist

Dated: September 30, 2010

 

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