WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
CIE Exploitation des Services Auxiliaires Aeriens Servair v. Value-Domain Com (Privacy Proxy), Wert Domain
Case No. D2011-0608
1. The Parties
The Complainant is CIE Exploitation des Services Auxiliaires Aeriens Servair of Roissypôle, Roissy CDG Cedex, France, represented by MEYER & Partenaires, France.
The Respondent is Value-Domain Com (Privacy Proxy), Wert Domain of Osaka-shi, Osaka-fu, Japan.
2. The Domain Name and Registrar
The disputed domain name <serv-air.com> is registered with Key-Systems GmbH dba domaindiscount24.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 5, 2011. On April 5, 2011, the Center transmitted by email to Key-Systems GmbH dba domaindiscount24.com a request for registrar verification in connection with the disputed domain name. On the same day, Key-Systems GmbH dba domaindiscount24.com 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 April 15, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was May 5, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 6, 2011.
The Center appointed Erica Aoki as the sole panelist in this matter on May 11, 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.
The language of the administrative proceeding is English.
4. Factual Background
The Complainant is a French company first established in 1971 and is one of the leading caterer and cleaning services provider ranked as the third largest catering company in the world.
The Complainant has registered several generic and country code top-level domain names consisting of or incorporating the trademark SERVAIR.
The disputed domain name <serv-air.com> was registered on September 13, 2010.
When the Complainant became aware that the Respondent had registered the disputed domain name <serv-air.com> the Complainant decided to file the present Complaint.
5. Parties’ Contentions
The Complainant claims to be a leading French caterer and cleaning services provider ranked as the third largest catering company in the world with a 9% market share.
The Complainant’s global workforce counts around 9,400 employees, providing restaurant services, aircraft equipping and cleaning. It has 130 customer companies. As a subsidiary of Air France, the Complainant and its subsidiaries have a turnover of more than 750 million euros.
The Complainant is operating an international web portal available in French at “http://www.servair.fr” since April 2001 and in English at “http://www.servair-catering.com” since June 2003.
The Complainant and its partners (Alpha, Flying Food Group, Servair Air Chef and Eurest Servair) and its technical support, have over 100 units throughout the world which have more than 45 million meal trays prepared per year.
The Complainant is owner of the generic top level domain names <servair.org>, <servair.biz> and <servair.info> and the country code top level domain names dedicated to the Asian area <servair.jp>, <servair.tw>, <servair.vn>, <servair.hk>, <servair.sg>, <servair.asia>, <servair.cn>, <servair.com.cn>, <servair.org.cn> and <servair.net.cn>.
These domain names are said to redirect to the Complainant’s International portal under URL: “http://www.servair-catering.com”.
The Complainant has rights in the trademark SERVAIR with International registration numbers 795792 (registered on July 23, 2002) and 972651 (registered on November 9, 2011) and its Japanese registration number 1032601 (registered on September 17, 2009).
The Complainant holds that the disputed domain name is confusingly similar to its trademark, that the Respondent does not have any rights or legitimate interests in the disputed domain name and further that the Respondent has registered and used the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
The Respondent is apparently located in Osaka, Japan and owns according to the Complainant more than 554,000 other domain names.
The disputed domain name <serv-air.com> leads to a page containing several hyperlinks in Japanese and that redirected to a Japanese website about the outsourcing of payroll, human relations and labor.
6. Discussion and Findings
The Complainant needs to show the requirements specified under paragraph 4(a) of the Policy:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in respect of which the Complainant has rights: and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name: and
(iii) that the disputed domain name has been registered and used in bad faith.
A. Identical or Confusingly Similar
Based on the facts presented by the Complainant, this Panel finds that the disputed domain name is confusingly similar to a mark in which the Complainant has rights under Policy, paragraph 4(a)(i). The disputed domain name includes the Complainant’s longstanding trademark SERVAIR separated by hyphen, resulting in “serv-air”. This is sufficient to get the Complainant over the first element threshold requirement of paragraph 4(a)(i)of the Policy. However such finding does not if itself satisfy the requirement for an intention to attempt to attract for commercial gain by creating a likelihood of confusion under paragraph 4(b)(iv), which the Panel will discuss further below.
B. Rights or Legitimate Interests
The Respondent is in default and thus has made no affirmative attempt to show any rights or legitimate interests in the disputed domain name. The Complainant, for its part, has established its prima facie case regarding the Respondent’s lack of rights or legitimate interests, and thus carried its burden under this element of the Policy. See e.g. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110 and Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
As informed by the Complainant, the Respondent’s website provides a page with an index in Japanese and hyperlinks to pages for human resources services.
The Policy indicates that a registrant may have a right or legitimate interest in a domain name if it was making use of the domain name in connection with a bona fide offering of goods or services prior to notice of the dispute.
The Respondent is in no way connected with the Complainant and has no authorization to use any of the Complainant’s trademarks.
There is no evidence that the Respondent is or was commonly known by the disputed domain name as an individual, business or other organization.
Thus the Respondent has no known rights or legitimate interests in respect of the disputed domain name. There is no evidence of the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.
The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name, under Policy paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Complainant contends that the Respondent has registered and used the disputed domain name <serv-air.com> in bad faith under paragraph 4(b) of the Policy and that the Respondent has used the disputed domain name intentionally to attempt to attract, for commercial gain, Internet users to the Respondent’s website or other online location by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s site or of a product or service offered on the Respondent’s website, in accordance with Policy 4(b)(iv). However this Panel is not on balance convinced about the facts presented and notes that the burden of proving its case is on the Complainant.
Apart from the fact that the disputed domain name has been found by this Panel to be confusingly similar to the Complainant’s trademarks for the purpose of the first element standing requirement, the Panel finds there is not much direct evidence of the Respondent’s intention to create a likelihood of confusion for the purpose of diverting Internet users to Respondent’s website based on the Complainant’s mark in particular. The Panel notes the website appears to be in use to post links to inter alia human resource services which bear little if any apparent relationship to goods and services provided by the Compliant under its SERVAIR mark. This is not a case in which, for example links to the direct competitors of the Complainant are in evidence.
On the other hand, the Panel notes the evidence provided by the Complainant alleging that VALUE-DOMAIN COM has also registered and is using at least three other domain names that visibly infringe the rights of Société Air France’s subsidiaries. Evidently such consideration does little to assist the Repondnent.
However, this Panel finds such conduct per se (while suggestive) is not enough to tip a finding of bad faith use in the Complainant’s favour in the present finely balanced case.
Interpreting the case provided by the Complainant, SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092 regarding <sembcorp.com>: “surrounding circumstances would lead one to infer that the [r]espondent ‘knew’ or ‘ought to have known’ of the existence/trademark rights of the [c]omplainant”. All the evidence suggests that Respondent’s registration of the disputed domain name was calculated rather than accidental.
This Panel understands that while the Respondent may have been a respondent in several UDRP cases, which may reflect a pattern of behaviour, such past behaviour is not enough to determine bad faith use in present case where clear evidence of bad faith use, as the use of pay-per-click links to competitors’ websites is lacking.
The Panel is not convinced on the balance of the evidence in this case that in using the disputed domain name <serv-air.com>, VALUE-DOMAIN COM is intending to refer to the Complainant.
The Panel understand that the Complainant‘s business, although it is used by millions of people all over the world, does not necessarily correspond to a trademark of such notoriety, that a term like “serv-air” would necessarily bring to mind the Complainant’s trademark.
Although the Complainant has presented evidence that the Respondent is in the business of domain name speculation, in this case in particular, this Panel finds insufficient evidence of bad faith use to enable it to confidently find bad faith.
The Panel wishes to record that although the Complainant has failed on balance here to persuade it that the present use of the domain name is in bad faith, if such use would change after the issue of the present decision to become clearly abusive of the Complainant’s trademark, such material new development may provide grounds for a re-filing naturally subject to a determination being made by a future panel on the satisfaction of the relevant criteria regarding such re-filing.
For all the foregoing reasons, the Complaint is denied.
Dated: May 31, 2011