World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

WestJet Airlines Ltd. v. Taranga Services Pty Ltd

Case No. D2010-1814

1. The Parties

The Complainant is WestJet Airlines Ltd. of Calgary, Alberta, Canada, represented by Gowling Lafleur Henderson LLP, Canada.

The Respondent is Taranga Services Pty Ltd of Wellington, New Zealand.

2. The Domain Name and Registrar

The disputed domain name <wsetjet.com> is registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 27, 2010. On October 28, 2010, the Center transmitted by email to Moniker Online Services, LLC. a request for registrar verification in connection with the disputed domain name. On October 28, 2010, Moniker Online Services, LLC. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On December 2, 2010 the Complainant, after being requested by the Center, confirmed that a copy of the Complaint had been sent to the Respondent in accordance with paragraph 2(b) of the Rules.

The Center verified that 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 November 3, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was November 23, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 25, 2010.

The Center appointed William F. Hamilton as the sole panelist in this matter on December 2, 2010. 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 a leading international airline company. The Complainant flies an average of 420 flights everyday and services Canada, the United States of America, Mexico and the Caribbean. Between 2005 and 2009 alone, the Complainant generated billions in revenue. Its website is located at “www.westjet.com”, which was registered in 1995. The Complainant is the owner of sixteen Canadian trademark registrations utilizing the WESTJET mark. The earliest of the WESTJET marks was registered in 1997.

The <wsetjet.com> domain name was registered on September 26, 2005.

5. Parties’ Contentions

A. Complainant

The Complainant asserts that the Respondent registered the disputed domain name without the permission of the Complainant. The Complainant asserts that the disputed domain name resolves to a pay-per-click website displaying links to competitors of the Complainant. The Complainant asserts this use of the disputed domain name put the Respondent in a position to reap a financial benefit. The Complainant asserts that the disputed domain name constitutes an intentional misspelling of WESTJET. The Complainant asserts that the Respondent has a history of unauthorized domain name registrations, and that numerous successful UDRP complaints have been filed against the Respondent.

Further, the Complainant asserts the Respondent registered the disputed domain name for the purpose of disrupting the business of the Complainant, a competitor of the Respondent. Additionally, the Complainant asserts that the Respondent registered the disputed domain name in an attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant as to source or sponsorship.

In sum, the Complainant asserts that the disputed domain name is substantially similar to the Complainant's WESTJET mark, that the Respondent has no rights of legitimate interests in the WESTJET mark or the disputed domain name, and that the disputed domain name was registered and is being used in bad faith.

B. Respondent

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

6. Discussion and Findings

Paragraph 4(a) of the Policy articulates three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration and to obtain relief. These elements are that:

(i) The respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights: and

(ii) The respondent has no rights or legitimate interests in respect of the domain name; and

(iii) The respondent’s domain name has been registered and is being used in bad faith.

Each of these elements must be proved by a complainant to warrant relief.

A. Identical or Confusingly Similar

This case presents a classic case of typosquatting. The disputed domain name merely alters the spelling WESTJET by juxtaposition of the "e" and the "s". Thus, a typing error by an Internet user would resolve to Respondent's website. It is a well-established principle that typo squatting constitutes prima facie evidence of confusion. DaimlerChrysler Corporation v. Peter Carrington, WIPO Case No. D2002-0756; Citigroup, Inc v. Party Night Inc., WIPO Case No. D2003-0480; ESPN, Inc. v. XC2, WIPO Case No. D2005-0444; Dow Jones & Company, Inc. and Dow Jones, L.P. v. Powerclick, Inc., WIPO Case No. D2000-1259. The Complainant has established that the disputed domain name is confusingly similar to WESTJET mark and has met the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has asserted that the Respondent was never licensed or authorized to use the disputed domain name or the WESTJET mark. It is well settled that diverting Internet traffic, by way of typosquatting, to a website offering sponsored links to competitors of a complainant is prima facie evidence of no rights or legitimate interests. ESPN, Inc. v. XC2, supra; MouseSavers, Inc. v. Tsung, WIPO Case No. D2004-1034; Marriott Int’l, Inc. v. Seocho, NAF Claim FA149187. The Complainant has thus established a prima facie case, and Respondent has failed to rebut the Complainant's assertion in any response. It does not appear that the Respondent has ever been commonly know by the WESTJET mark or "wsetjet" or that the Respondent is using the disputed domain name for noncommercial purposes. Indeed the Respondent's website offers competitive services. Complainant has met its burden of establishing that the Respondent has no rights or legitimate interests in the disputed domain name and has thus satisfied paragraph 4(a)(ii) of the Policy. Research In Motion Limited v. International Domain Names Inc./Moniker Privacy Services, WIPO Case No. D2008-0780; B and J García, S.L., Arnedo, Spain v. Gorila, WIPO Case No. D2004-1071; Lowen Corporation d/b/a Lowen Sign Company v. Henry Chan, WIPO Case No. D2004-0430.

C. Registered and Used in Bad Faith

From the evidence presented, it is apparent to the Panel that the registration and use of the disputed domain name is in bad faith. It is well-settled that the practice of typosquatting constitutes evidence of the bad faith registration (ESPN, Inc. v. XC2, supra; Longs Drug Stores Cal., Inc. v. Shep Dog, WIPO Case No. D2004-1069; Lexar Media, Inc. v. Huang, WIPO Case No. D2004-1039; Wal-Mart Stores, Inc. v. Longo, WIPO Case No. D2004-0816). While previous conduct is not determinative of the result in this case, it should be noted that the Respondent has engaged in a similar course of conduct with respect to other domain names. Many UDRP complaints have been initiated against the Respondent involving several domain names. In each case, a finding of bad faith was made against the Respondent and the disputed domains names were ordered transferred. Thus is appears that the Respondent has engaged in a pattern of bad faith registrations with the instant disputed domain name being the latest bad faith registration. Moreover, it is apparent from this record that the goal of the Respondent in registering and using the disputed domain name was to catch unsuspecting Internet users who misspelled WESTJET as "wsetjet" at the Respondent's sites and offer competitive airline services to such misdirected Internet users. An attempt to derive a financial benefit from typosquatting constitutes evidence of bad faith. Expedia, Inc. v. Collazo, WIPO Case No. D2003-0716. The Respondent has established that the disputed domain name was registered and is being used in bad faith and has thus satisfied paragraph 4(a)(ii) of the Policy.

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 <wsetjet.com> be transferred to the Complainant.

William F. Hamilton
Sole Panelist
Date: December 16, 2010

 

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