WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France v. Elitebase
Case No. D2011-0048
1. The Parties
Complainant is Société Air France of Roissy Charles de Gaule, France, represented by MEYER & Partenaires, France.
Respondent is Elitebase of Central Hong Kong, SAR of China.
2. The Domain Names and Registrar
The disputed domain names <airfrance-reservation.com> and <billetdavionairfrance.com> are registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 10, 2011. On January 11, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain names. On January 12, 2011, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on January 14, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was February 3, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 4, 2011.
The Center appointed Roberto Bianchi as the sole panelist in this matter on February 10, 2011. 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 following facts and circumstances are uncontested:
Complainant is the French flag carrier and one of the world's largest airlines. It is a subsidiary of the Air France-KLM Group and a founding member of the SkyTeam global airline alliance. Air France serves 32 destinations in France and operates worldwide scheduled passenger and cargo services to 183 destinations in 98 countries. On October 7, 1933, Air France was formed from a merger of Air Orient, Air Union, Compagnie Générale Aéropostale, Compagnie Internationale de Navigation Aérienne and Société Générale de Transport Aérien. In 1990, Air France acquired the operations of the carriers Air Inter and Union des Transports Aériens. Air France served as France's primary national flag carrier for seven decades prior to its 2003 merger with KLM.
Between April 2001 and March 2002, Air France carried 43.3 million passengers and had a total revenue of Eur 12.53 billion. In November 2004, Air France ranked as the largest European airline, with 25.5% total market share, and was the largest airline in the world in terms of operating revenue.
Complainant owns numerous trademarks consisting of or including the terms AIR FRANCE, inter alia:
AIR FRANCE, French nominative trademark, Reg. No. 1703113, Reg. Date October 31, 1991, covering International Classes 1 thru 42, renewed without limitation according to File No. 2207538 of September 27, 2001,
AIR FRANCE, Hong Kong nominative trademark, Reg. No. 300048276, Reg. Date July 16, 2003, covering International Classes 16, 35, 38 and 39, and
AIR FRANCE, Chinese nominative trademark, Reg. No. 828334C, Reg. Date October 20, 2003, covering International Classes 6, 8, 9, 12, 14, 16, 18 thru 21, 24, 25, 28 thru 32, 33 thru 39, and 41 thru 45.
Complainant is operating an international web portal at “www.airfrance.com”. It also registered several generic and country code top-level domain names consisting of or incorporating the trademark AIR FRANCE: <airfrancereservations.com>, <airfrancereservation.com> and <airfrance-reservations.com>, pointing to Air France’s web portal dedicated to France at “www.airfrance.fr”; and <airtickets-airfrance.com> and <airfranceticket.com>, pointing to Air France’s web portal dedicated to United Kingdom of Great Britain and Ireland “www.airfrance.co.uk”.
The disputed domain name <billetdavionairfrance.com> was registered on April 27, 2010. The disputed domain name <airfrance-reservation.com> was registered on May 1, 2010.
On January 10, 2011, the disputed domain name <billetdavionairfrance.com> resolved to a webpage, on which a text in French was posted, offering the Internet user to compare prices of air tickets to destinations like Djerba, Cairo, Fort-de-France, Punta Cana, Marrakech, Shanghai, Bangkok, New York, flying with the best air companies at the lowest prices. The text offered a comparison tool to provide in seconds a large choice of the lowest tariffs of the largest travel agencies on the Internet. On the same webpage several ads were posted, apparently placed under a “pay-per-click”. Also on January 10, 2011, similar text and ads appeared on the webpage to which the disputed domain name <airfrance-reservation.com> resolved.
5. Parties’ Contentions
Complainant contends as follows:
The disputed domain names are confusingly similar to Complainant’s trademark AIR FRANCE. First, this trademark is entirely reproduced in each of the disputed domain names. The absence of space or stresses in a domain name including a the trademark has to be ignored in assessing the question of identity or confusing similarity. Second, the disputed domain names combine Complainant’s famous trademark with the prefix “billetdavion” (which means “plane ticket” in French) and the suffix “reservation” (which means “booking” in French and English). These words literally refer to the main business of Complainant, which is one of the world’s major airline companies. In fact, the combination of the trademark AIR FRANCE with these wordings does not eliminate the risk of confusion with the famous mark, which is the only distinctive element of the domain names in issue.
Elitebase should be considered as having no rights or legitimate interests in respect of the disputed domain names. Respondent is not related in any way to Complainant's business. It is not one of its agents and does not carry out any activity for, or has any business with Complainant. Respondent is not currently and has never been known by the terms “billetdavionairfrance” or “airfrance-reservation”. Complainant has not granted Elitebase any license or authorization to make any use or apply for registration of the disputed domain names.
The disputed domain names have been registered by Elitebase in order to take advantage of Complainant’s well-known trademark to confuse and divert Internet users to a commercial search engine at “www.e-bookers.fr” in the field of tourism and travel through a “pay-per-click” domain parking solution. Such use is not a bona fide offering of goods or services under Policy, paragraph 4(c)(i), or a noncommercial or fair use under Policy, paragraph 4 (c)(iii). Respondent has not engaged in any action showing that it has rights or legitimate interests in the disputed domain names.
It is difficult to imagine that Respondent could have ignored the well-known trademark AIR FRANCE when it registered the disputed domain names. Complainant has demonstrated the strong reputation and widely known character of its mark AIR FRANCE throughout the world for a long time. In similar cases, panels have decided that the notoriety of a complainant's trademark creates a prima facie presumption that the respondent registered the domain name for the purpose of selling it to complainant or one of its competitors, or that the registration was intended to be used in some way to attract for commercial gain users to the website by creating a likelihood of confusion with complainant's mark. Respondent could not ignore the international reputation of the AIR FRANCE mark at the time it registered the disputed domain names, and wanted to refer to Complainant. The terms “billetdavion” and “reservation”, combined with the trademark AIR FRANCE in the disputed domain names, describe the main activity of Complainant. All the hyperlinks displayed under the disputed domain names concern the field of tourism and travel. Respondent has registered these domain names precisely because iz knew the well-known character of the trademark AIR FRANCE, for the only purpose of generating commercial gain by intentionally taking advantage of Internet traffic and diverting Internet users to other websites in the field of tourism and travel through hyperlinks.
Respondent’s use of the disputed domain names is in bad faith. Respondent uses the disputed domain names to confuse Internet users and divert them to a commercial search engine at “www.e-bookers.fr” in the field of tourism and travel through a “pay-per-click” domain parking solution. The source code of the web pages at the disputed domain names makes reference to TradeDoubler, an advertising program offering rewarded commercial campaigns to publishers. By clicking on the hyperlinks displayed under the disputed domain names, users are directed to a competing third-party search engine at “www.e-bookers.fr”. These hyperlinks generate revenue to the benefit of Respondent. It is obvious that Respondent is intending to realize material benefits by diluting the fame and renown of Complainant's trademark. Even if such use commonly occurs on so-called "parking" pages, Respondent has a responsibility for the content it allows to be posted on the site. Respondent is obviously not making any legitimate noncommercial or fair use of the disputed domain names because such use could mislead consumers by offering competing services, without having acquired any license or permission from Complainant, the legitimate owner of the trademark AIR FRANCE. Accordingly, Respondent’s use of the disputed domain names has to be considered as unfair competition.
Respondent did not reply to Complainant’s contentions, and is in default.
6. Discussion and Findings
Under Policy, paragraph 4(a), a complainant must make out its case that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
With printouts from official trademark online databases, Complainant has shown that it has trademark rights in the AIR FRANCE mark. See “Factual Background” above.
The disputed domain names incorporate the AIR FRANCE mark in its entirety, with the addition of the generic terms “billetdavion” (in the <billetdavionairfrance.com> domain name), and “reservation” after a hyphen (in the <airfrance-reservation.com> domain name), plus the “.com” gTLD. It is well established by UDRP panels that the addition of a generic term or a gTLD to a mark is insufficient to distinguish the domain name from the mark. In this case, the generic terms even reinforce the impression of association and confusion with Complainant’s AIR FRANCE mark. In fact “billetdavion”1 and “reservation” are descriptive and even necessary to refer to Complainant’s business of selling tickets with or without previous reservation under the AIR FRANCE mark. Moreover, as it can be seen at “Factual Background” above, the activities of selling tickets and making reservations for flights are included in the international classes covered by Complainant’s mark. See Caterpillar Inc. v. Roam the Planet, Ltd., WIPO Case No. D2000-0275, relating to <catmachines.com>, finding that “[t]he registered CATERPILLAR and CAT trademarks are presumed to be valid, and the addition of the word ‘machines’ as a suffix to the word ‘cat’ in the domain name under consideration does not serve to distinguish the domain name from the trademark CAT, but rather would reinforce the association of the Complainant’s trademark with its primary line of products”. See also Advanced Micro Devices, Inc. v. Dmitry, WIPO Case No. D2000-0530, relating to <athlonchip.com> (“[t]he inclusion of the word ‘“chip”’ with the ATHLON mark in the domain name confirms the confusing similarity of the domain name to Complainant’s rights, because ‘“chip”’ describes the products offered by Complainant under the ATHLON mark.”)
Accordingly, the Panel finds that the disputed domain names are confusingly similar to Complainant’s AIR FRANCE mark.
B. Rights or Legitimate Interests
Complainant contends that Respondent is not related in any way to Complainant's business, that it is not one of its agents and does not carry out any activity for, or has any business with Complainant, that it is not currently and has never been known by the terms “billetdavionairfrance” or “airfrance-reservation”, and that Complainant has not granted Respondent any license or authorization to make any use or apply for registration of the disputed domain names. Complainant also contends that Respondent registered the disputed domain names in order to take advantage of Complainant’s well-known trademark to confuse and divert Internet users to a commercial search engine at “www.e-bookers.fr” in the field of tourism and travel through a “pay-per-click” domain parking solution, that such use is not a bona fide offering of goods or services under Policy, paragraph 4(c)(i), or a noncommercial or fair use under Policy, paragraph 4(c)(iii), and that Respondent has not engaged in any action showing rights or legitimate interests in the disputed domain names.
Taken together, these contentions and supporting evidence (none of which have been contested by Respondent), amount to a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names.
It is the consensus view of UDRP panels that once a prima facie case is made, a respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain names. See paragraph 4.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions. Since Respondent has not submitted any comments or evidence whatsoever, the Panel concludes that Respondent lacks any rights or legitimate interests in the disputed domain names.
C. Registered and Used in Bad Faith
This Panel shares the view of previous UDRP panels that the AIR FRANCE mark enjoys considerable renown and notoriety. See, among other cases, Air France KLM v. Ho Nim, WIPO Case No. D2010-0838 (AIR FRANCE and KLM marks considered well-known), Société Air France contre ATPS / Bennaceur Djemoui, WIPO Case No. D2010-0786 (AIR FRANCE mark considered notorious) and Société Air France v. Van Wijk & Mesker Holding BV, WIPO Case No. D2002-0028 (AIR FRANCE trademark considered famous).
Given that Mr. Reinette, the administrative contact for both domain name registrations, apparently is a French businessman, that the texts posted on the websites at the disputed domain names are in French, and that the registration of the disputed domain names was made many years after the AIR FRANCE mark had been registered and first used in France and elsewhere by Complainant, and seven years after the mark had been registered in Hong Kong, SAR of China and China (the country where Respondent Elitebase is based), it is unthinkable that Respondent could not have known of Complainant, its mark and air transportation services at the time of the domain name registration. Accordingly, the Panel concludes that Respondent aimed at Complainant and had Complainant’s AIR FRANCE mark in mind when it registered the disputed domain names.
Complainant has shown that on the webpages at the disputed domain names texts in French were posted offering Internet users to compare prices of air tickets to destinations like Djerba, Cairo, Fort-de-France, Punta Cana, Marrakech, Shanghai, Bangkok, New York, etc., flying with the best air companies at the lowest prices. The posted texts offered to use a comparison tool apparently able to provide in seconds a large choice of the lowest tariffs of the largest travel agencies on the Internet. Also, on both web pages several ads were posted, generating income through a “pay-per-click” system.
Given this use of the disputed domain names, the Panel cannot but conclude that Respondent, by using these domain names, has intentionally attempted to attract, for commercial gain, Internet users to its web sites or other on-line locations, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web sites or locations or of a product, or service on its web sites or locations, which is a circumstance of registration and use in bad faith pursuant to Policy, paragraph 4(b)(iv).
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 names <airfrance-reservation.com> and <billetdavionairfrance.com> be transferred to Complainant.
Dated: February 22, 2011
1 Apostrophes like in “billet d’avion” – “airplane ticket” in English – are not available when registering domain names.