WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
WestJet Airlines Ltd. v. PrivacyProtect.org / George Maresan
Case No. D2010-1816
1. The Parties
The Complainant is WestJet Airlines Ltd. of Calgary, Alberta, Canada, represented by Gowling Lafleur Henderson LLP, Canada.
The Respondent is PrivacyProtect.org of Moergestel, the Netherlands andGeorge Maresan of Atascadero, California, United States of America.
2. The Disputed Domain Name And Registrar
The disputed domain name <westjetvacation.com> is registered with Answerable.com (I) Pvt Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 27, 2010. On October 28, 2010, November 1, 2010, November 2, 2010, November 4, 2010 and November 5, 2010 the Center transmitted by email to Answerable.com (I) Pvt Ltd. a request for registrar verification in connection with the disputed domain name and reminders. On November 9, 2010, Answerable.com (I) Pvt Ltd. transmitted by email to the Center its verification response, disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 11, 2010, providing the registrant and contact information disclosed by Answerable.com (I) Pvt Ltd.and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an Amended Complaint on November 15, 2010. After being so requested by the Center, the Complainant confirmed on November 19, 2010 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 with the Amended 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 22, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was December 12, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 13, 2010.
The Center appointed William P. Knight as the sole panelist in this matter on December 28, 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 substantial airline operator based in Calgary, Canada with a domestic and international flight network reaching the United States of America, Mexico and the Caribbean nations. It commenced operations under its name in 1996. It is the owner of a number of Canadian trade-mark registrations, including WESTJET VACATIONS (Registration No. TMA688699), and domain name registrations including that under which its principal website operates, “www.westjet.com”, and another for its vacation planning website, “www.westjetvacations.com”.
The disputed domain name was registered in 2005. It presently resolves to a pay-per-click website that offers the Internet user that happens upon it a number of links to that lead to travel, accommodation and resort websites offering services that compete with those of the Complainant.
5. Parties’ Contentions
When the Complainant’s attention was first drawn to the disputed domain name and the website under it, it was registered in the name of a Mr. J. Wu of Boston, to whom the Complainant’s attorneys accordingly wrote demanding that the disputed domain name and its use be given up. Soon thereafter, the registration of the disputed domain name was transferred to the first RespondentPrivacyProtect.org. After the filing of the original Complaint, the registration of the disputed domain name was altered to show the second Respondent George Maresan as the owner.
The Complainant has not licensed either of the Respondents to register as a domain name or use its trade-marks.
In the circumstances, and noting the date of registration of the disputed domain name and Mr. Wu’s and the Respondents’ conduct following notification of the Complaint, the Complainant contends:
1. The disputed domain name is confusingly similar to the Complainant’s trade-marks in which the Complainant has rights, and continues to have such rights.
2. The Respondents have no rights or legitimate interests in the disputed domain name as contemplated by paragraph 4(c) of the Policy.
3. The Respondents have engaged in typosquatting, which is prima facie evidence of bad faith.
4. The Respondents registered the disputed domain name for the purpose of disrupting the business of the Complainant, a competitor.
5. The Respondents have used the disputed domain name to attempt intentionally to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trade-marks as to source, sponsorship, affiliation, or endorsement.
The Complainant requests a transfer to it of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion And Findings
Paragraph 4(a) of the Policy requires the Complainant to prove that:
(i) the disputed domain name is identical or confusingly similar to a trade-mark or service mark in which the Complainant has rights; and
(ii) the Respondents have 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 onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the UDRP. Clearly, in the Panel’s view, the most difficult of these to prove is the third, registration and use in bad faith, since it is virtually impossible for a complainant to establish the state of mind or intentions of an unknown and remote registrant – even more so one that does not clearly identify itself. Paragraph 4(b) provides for the implication of evidence of bad faith in a number of circumstances, to some of which the Complainant has referred in the Complaint, but these are illustrative and do not represent the only circumstances from which may arise evidence of bad faith; see Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is identical or confusingly similar to the Complainant’s registered trade-marks, notably WESTJET VACATIONS, as the only difference with this trade-mark is the absence of the letter “s” at the end of the domain name.
B. Rights or Legitimate Interests
The Respondents have provided no explanation of their selection of and manner of use of the disputed domain name and have not disputed the Complainant’s contention that they are not licensed to use the Complainant’s trade-marks by the Complainant. Furthermore, the use being made of the disputed domain name strongly suggests that the Respondents have acquired the disputed domain name for the purpose of diverting Internet traffic away from the Complainant to their own financial benefit, without having any rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
The date of registration of the disputed domain name strongly suggests that it was registered with knowledge of the Complainant’s operations. Even if the Complainant is based in Canada and Mr. J. Wu and the current Respondents are located elsewhere, the scale of the Complainant’s operations clearly suggest that the disputed domain name was not chosen at random but in order to take advantage of the Complainant’s commercial reputation by virtue of the similarity of the disputed domain name with the Complainant’s trade-marks. As mentioned, the use being made of the disputed domain name strongly suggests that the Respondents have acquired the disputed domain name and are using it for the purpose of diverting Internet traffic away from the Complainant to their own financial benefit. The conduct of Mr. Wu and the Respondents following notification of the Complainant’s grievance is somewhat ambivalent, as it appears to be senseless, but it may be suggestive of an attempt to shake off the Complainant, the Respondents having in the Panel’s view no justification for their acquisition and use of the disputed domain name.
The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith.
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 <westjetvacation.com>be transferred to the Complainant.
William P. Knight
Dated: January 2, 2011