WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
WestJet Airlines Ltd. v. Hyro FZ-LLC
Case No. D2010-1815
1. The Parties
The Complainant is WestJet Airlines Ltd., Calgary, Alberta, Canada, represented by Gowling Lafleur Henderson, LLP, Canada.
The Respondent is Hyro FZ-LLC, Dubai, United Arab Emirates.
2. The Domain Name and Registrar
The disputed domain name <www-westjet.com> is registered with PSI-USA, Inc. dba Domain Robot.
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 PSI-USA, Inc. dba Domain Robot a request for registrar verification in connection with the disputed domain name. On October 28, 2010, PSI-USA, Inc. dba Domain Robot transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
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 1, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was November 21, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 26, 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 over US $10 billion 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.
5. Parties’ Contentions
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 the Complainants full domain name <www.westjet.com> to <www-westjet.com>, which merely replace a period with a hypen. The Complainant asserts this alternation of its domain name is a form of typosquatting. The Complainant asserts that the Respondent has a history of similar 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 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.
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 form of typosquatting. The disputed domain name merely substitutes a "-" for a "." in the disputed domain name. Thus, a typing error of <www-westjet.com> 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 addition of “www-” to a disputed domain name does nothing to dispel confusion and has been held to constitute a form of typosquatting. Humana Inc. v. HYRO FZ-LLC, WIPO Case No. D2008-1695; Wal-Mart Stores, Inc. v. Longo, WIPO Case No. D2004-0816; Société Air France v. Kim Hyungho, WIPO Case No. D2005-0442. 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 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 known by the name “Westjet” or "www-westjet" or that the Respondent is using the disputed domain name for noncommercial purposes. Indeed the Respondent's website offers competitive services. The Complainant has met its burden of establishing that the Respondent has no rights or legitimate interests in the disputed domain name of WESTJET mark, and has thus satisfied paragraph 4(a)(ii) of the Policy. Research In Motion Limited v. International Domain Names Inc./Moniker Privacy Services, supra; 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 that the registration and use of the disputed domain name is in bad faith. It is well-settled that the practice of typosquatting is by itself 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. The Respondent has registered <www-yamaha.com>, <www-rca.com>, <www-metlife.com>, <www-papajohns.com> and <www-timesofindia.com>. Humana Inc. v. HYRO FZ-LLC, WIPO Case No. D2008-1695. Thus it 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 <www.westjet.com> as <www-westjet.com> 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.
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 <www-westjet.com> be transferred to the Complainant.
William F Hamilton
Dated: December 16, 2010