World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Jet2.com Limited v. Herethereandeverywhere, Inc.

Case No. D2011-1003

1. The Parties

Complainant is Jet2.com Limited of Leeds, United Kingdom of Great Britain and Northern Ireland, represented by Kempner & Partners LLP, United Kingdom of Great Britain and Northern Ireland.

Respondent is Herethereandeverywhere, Inc. of Allentown, Pennsylvania, United States of America.

2. The Domain Name and Registrar

The disputed domain name <jet2carhire.com> is registered with Intercosmos Media Group d/b/a directNIC.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2011. On June 15, 2011, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com.

a request for registrar verification in connection with the disputed domain name. On June 15, 2011, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the disputed domain name.

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 June 22, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was July 12, 2011. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 13, 2011.

The Center appointed Ross Carson as the sole panelist in this matter on July 20, 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

Complainant is a leading leisure airline. Currently, its aircrafts fly between eight United Kingdom airports and fifty popular holiday destinations in more than fifteen European countries, eight Mediterranean islands as well as Egypt, Israel and the United States. It commenced its operations in February 2003, in the United Kingdom. The Complainant has flown over 20 million passengers since its creation, with 3.1 million passengers in the year ending March 31, 2010. Complainant is one of the leading advertisers in the north of England, Scotland and Northern Ireland and its marketing spend in the regions in which it operates is over GBP 10 million per annum.

Complainant owns many registered trademarks throughout the world for JET2, JET2.COM and JET2 HOLIDAYS including United Kingdom Trade Mark Registration No. 2312986 for the trademark JET2.COM dated October 11, 2002, registered in relation to services in classes 39 and 43; and United Kingdom Trade Mark Registration No. 2312985 for the trademark JET2 registered in relation to services in classes 39 and 43.

The disputed domain name <jet2carhire.com> was registered on April 27, 2007.

5. Parties’ Contentions

A. Complainant

A.1. Identical or Confusingly Similar

Complainant states that it’s registered trademarks for and including JET2, referred to in section 4 above, have been in use since at least as early as 2003, and are well-known in the United Kingdom in association with the provision of flights, accommodations and transportation services associated with leisure vacations for which they are registered.

Complainant states that the disputed domain name is confusingly similar to the Complainant’s registered trademarks for, or including, JET2 as the disputed domain name begins with the Complainant’s registered trade mark for JET2 and then adds the generic top-level domain “.com” along with the purely descriptive term “car hire”.

Complainant further submits that the registration by Respondent of the disputed domain name is a misrepresentation to the public that the disputed domain name is connected to the Complainant, since users of the Respondent’s website will no doubt assume from the inclusion of the Complainant’s trade mark within the domain name that the services are affiliated with the Complainant. Accordingly it is likely that the Complainant’s goodwill in JET2, JET2.COM and JET2 HOLIDAYS will be damaged. Here Complainant cites British Telecommunications Plc and Os v. One in a Million & Os, [1999] 1 WLR 903.

A.2. No Rights or Legitimate Interests in respect of the Domain Name

Complainant states that there is no evidence that the Respondent does trade, or has ever legitimately traded or become known as JET2 or that it has any rights in the name JET2. According to the Complaint, the Respondent is put to strict proof on this.

Complainant further states that Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain name as Respondent has not responded to the Complainant’s allegations to the contrary. On December 10, 2010, Complainant’s solicitors wrote to Respondent in connection with its use of the disputed domain name. Copies of the relevant correspondence can be found annexed to this Complaint. Respondent did not respond to the correspondence from Complainant’s solicitors. In the period prior to Complainant’s solicitors first notifying Respondent of the dispute, Respondent’s use of the disputed domain name was limited to redirecting Internet users who typed in the domain name to the website at “www.vizivo.com”, which purportedly offered car rental services. Respondent cannot therefore say that the disputed domain name had been used in connection with a bona fide offering of goods and services before Complainant’s notice of the dispute.

Complainant further states that after being notified of the dispute, Respondent amended the connection associated with the disputed domain name such that it ceased redirecting traffic to the website at “www.vizivo.com”, but instead redirected Internet users to the website at “www.eurocarhire.com”. Screenshots of the website at ”www.eurocarhire.com” are attached as an annex to the Complaint. It is more than likely that Internet users have been confused and will continue to be confused into believing that the car hire services being offered from the website at the disputed domain name either emanated from Complainant or were somehow connected with Complainant.

A.3. Registration in Bad Faith

Complainant states that it commenced use of its trademarks for or including JET2 in February of 2003, and that Respondent registered the disputed domain name on April 27, 2007. Complainant states that it is common for car hire businesses to operate from airports, because it enables arriving air passengers to easily acquire transportation for the duration of their visit and to conveniently return it to the car hire operator prior to boarding for departure. Complainant registered and had been using its domain name <carhirefromjet2.com> in association with car hire services since 2006, via a network of affiliated third-party providers. Complainant’s trademarks had, already acquired a substantial reputation in relation to airline and transportation services generally, as well as holiday services, by the date of Respondent’s registration of the disputed domain name.

Complainant states that Respondent was found to be a serial cybersquatter in respect of domain names associated with car hire and car rental services. In 2009, in Green Flag Limited v. herethereandeverywhwere, inc., NAF Claim No. 1252796, the panel held that the domain name <greenflagcarhire.com> be transferred to complainant. In 2010, in Green Flag Limited v. herethereandeverywhere, inc., NAF Claim No. 1325481, the panel held that the domain names <greenflagcars.com>, <greenflagcarrentals.com>, <greenflagcarentals.com> and <greenflagcarental.com> be transferred to complainant. Complainant submits that the facts in the two National Arbitration Forum cases are extremely similar to the facts in present case.

A.4. Use in Bad Faith

Complainant states that after being notified of the dispute, Respondent changed the website associated with the disputed domain name such that it ceased redirecting traffic to the website at “www.vizivo.com”, but instead redirected Internet users to the website at “www.eurocarhire.com”. Screenshots of the website at “www.eurocarhire.com” are attached as an annex to the Complaint. Complainant submits it is more than likely that Internet users have been confused and will continue to be confused into believing that the car hire services being offered from the website either emanated from Complainant or were somehow connected with Complainant.

Complainant further states that the use by Respondent of the term “car hire” (which is descriptive of Complainant’s business) in the disputed domain name does not sufficiently distinguish the domain name from the Complainant’s mark. By using the disputed domain name, Respondent intentionally attempts to attract for commercial gain, Internet users to Respondent’s web site (or other on-line location) by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site or location or of a product or service on Respondent’s web site or location.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(i) the domain name registered by Respondent 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.

The fact that Respondent did not submit a Response does not automatically result in a decision in favor of Complainant. The failure of Respondent to file a Response may result in the Panel drawing certain inferences from Complainant’s evidence. The Panel may accept all reasonable and supported allegations and inferences following there from in the Complaint as true. Charles Jourdan Holding AG v. AAIM, WIPO Case No. D2000-0403.

A. Identical or Confusingly Similar

Pursuant to paragraph 4(a)(i) of the Policy, Complainant must establish rights in a trademark and secondly that the disputed domain name is identical to or confusingly similar to the trademark in which Complainant has rights.

Complainant has established that it is the owner of registered trademarks for or including JET 2 as the distinctive element in Belarus, Bulgaria, Croatia, Egypt, the European Community, Georgia, Israel, Norway, Romania, Switzerland, Tunisia, Turkey, Ukraine, and the United Kingdom, registered prior to Respondents registration of the disputed domain name on April 27, 2007.

The disputed domain name <jet2carhire.com> incorporates the entirety of Complainant’s trademark JET2 as the distinguishing element. Many UDRP decisions have found that domain names are generally confusingly similar to trademarks when the domain name incorporates the trademark in its entirety. See, PepsiCo.Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS COMPUTER INDUSTRY (a/k/a EMS), WIPO Case No. D2003-0696 (a domain name is “nearly identical or confusingly similar” to a complainant’s mark when it “fully incorporate[s] said mark”; holding <pepsiadventure.net>, <pepsitennis.com>, and other domain names confusingly similar to the complainant’s PEPSI mark); and Playboy Enterprises International, Inc. v. Zeynel Demirtas, WIPO Case No. D2007-0768.

The disputed domain name <jet2carhire.com> consists of Complainant’s distinctive trademark JET2 in combination with the descriptive term “carhire.com”. UDRP panels have repeatedly held that the merely adding a descriptive addition or generic term to a trademark, such as “car hire” does not sufficiently distinguish the domain name from the trademark. See, e.g. Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441.

The inclusion of the top level domain descriptor “.com” in the disputed domain name does not affect a finding of confusingly similarity. UDRP panels have repeatedly held that the specific top level of the domain name such as “.org”, “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar (see Magnum Piering, Inc. v.The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525 holding that confusing similarity under the Policy is decided upon the inclusion of a trademark in the domain name; and Rollerblade, Inc. v. Chris McCrady, WIPO Case No.D2000-0429 finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).

The Panel finds that Complainant has proven that the disputed domain name is confusingly similar to the registered trademarks in which Complainant has rights.

B. Rights or Legitimate Interests

Pursuant to paragraph 4(a)(ii) of the Policy, Complainant must prove that Respondent has no rights or legitimate interests in respect of the disputed domain name.

Respondent is not affiliated with Complainant and has never been authorized by Complainant to use Complainant’s registered trademarks or any trademarks confusingly similar thereto.

Respondent’s original use of the disputed domain name was limited to redirecting Internet users who type in the disputed domain name to a website at “www.vizivo.com”, which resolves to a parking page which provides links to websites of Complainant’s competitors. There is no evidence that Respondent used the disputed domain name before the Complainant’s notice of the dispute in connection with a bona fide offering of goods and services. After being notified of the dispute, Respondent change the website associated with the disputed domain name such that it ceased redirecting traffic to the website at “www.vizivo.com”, but instead redirected Internet users to the website at “www.eurocarhire.com” that also contained links to competitors of Complainant providing car hire services

There is no evidence that Respondent is commonly known by the disputed domain name or is making a legitimate noncommercial or fair use of the disputed domain name. See, The Caravan Club v. Mrgsale, NAF Claim No. FA95314 (domain name <thecaravanclub.com>; “registration of a well-known trademark by a party with no connection to the owner of the trademark and no authorization and no legitimate purpose to utilize the mark reveals bad faith”); see also CBS Broadcasting Inc. v. Worldwide Webs, Inc., WIPO Case No. D2000-0834.

Respondent is not offering the services at issue, but is merely using the disputed domain name to list links to external websites, some of which offer services from competitors of Complainant. Using Complainant’s JET2 trademark to bring Internet users to websites that contain links to services of Complainant’s competitors does not constitute a bona fide offering of goods. See, American Safety Institute, Inc. v. Jordan Meagar, NAF Claim No. FA1219231 (the respondent’s use of a domain name in dispute for a “parking” page, with hyperlinks to businesses offering services competitive with the complainant is “neither a bona fide offering of goods or services under Policy paragraph 4(c)(i) nor a legitimate noncommercial or fair use under Policy paragraph 4(c)(iii)”).

It is difficult for a complainant to prove the negative that a respondent does not have any rights or legitimate interests in a disputed domain name. Respondent was given the opportunity by way of reply to demonstrate any rights or legitimate interests in the disputed domain name pursuant to paragraph 4(c) of the Policy. Previous decisions under the UDRP have found it sufficient for a complainant to make a prima facie showing that a respondent does not have any rights or legitimate interests in the disputed domain name. Once this showing is made, the burden of production shifts to respondent to demonstrate its rights or legitimate interests in the disputed domain name. Respondent did not file a Response nor avail itself of the benefits of paragraph 4(c) of the Policy.

The Panel finds that Complainant has proven on a balance of probabilities that Respondent does not have any rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Pursuant to paragraph 4(a)(iii) of the Policy, Complainant must prove that the disputed domain name has been registered and used in bad faith.

C.i. Registered in Bad Faith

Complainant has established that it is the owner of numerous registered trademarks throughout the world for JET2, JET2.COM and JET2 HOLIDAYS including United Kingdom Trade Mark Registration No. 2312986 for the trademark JET2.COM dated October 11, 2002, registered in relation to services in classes 39 and 43, and United Kingdom Trade Mark Registration No. 2312985 for the trademark JET2 registered in relation to services in classes 39 and 43.

The disputed domain name <jet2carhire.com> was registered on April 27, 2007. Complainant’s reputation as a substantial leisure airline operating in association with its trademarks, incorporating JET2 as the distinctive element, was established well before Respondent registered the disputed domain name.

The disputed domain name incorporates the distinctive portion JET2 of Complainant’s trademark. The term “Jet2” appears to be a coined term and no evidence was submitted to the contrary. The disputed domain name is composed of Complainant’s trademark JET2, the descriptive term “carhire” and the top level domain “.com”. Complainant serves leisure tourists in the north of England, Scotland and Northern Ireland out of the Leeds Bradford International Airport. The descriptive term “car hire” is a term associated with automobile rentals in the United Kingdom. The term commonly used in the United States where Respondent is located is “car rentals”. The fact that the disputed domain name includes the descriptive term “car hire” in association with Complainant’s trademark JET2 supports a finding that Respondent must have been aware of Complainant’s business prior to registration of the disputed domain name and registered the disputed domain name in bad faith.

In previous UDRP decisions Respondent has been found to be a cybersquatter in respect of domain names associated with car hire and car rental services. In 2009, in Green Flag Limited v. herethereandeverywhwere, inc., NAF Claim No. 1252796, the panel held that the domain name <greenflagcarhire.com> be transferred to complainant. In 2010, in Green Flag Limited v.herethereandeverywhere, inc., NAF Claim No. 1325481, the panel held that the domain names <greenflagcars.com>, <greenflagcarrentals.com>, <greenflagcarentals.com> and <greenflagcarental.com> be transferred to complainant. Previous UDRP panels have found that previous findings of cybersquatting in similar fact situations is evidence of bad faith.

The Panel finds on a balance of probabilities that Respondent registered the disputed domain name in bad faith.

C.ii. Domain Name Used in Bad Faith

Paragraph 4(b)(iv) of the Policy provides that using a domain name to intentionally attempt to attract Internet users to your website for commercial gain by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement of a respondent’s website constitutes evidence of bad faith use of a domain name.

Respondent’s webpage associated with the disputed domain name includes links to entities providing car hire services. Car hire services are normally provided at airports. Complainant’s leisure travel services emanate from the Leeds Bradford International Airport. There is no evidence that Respondent provides car hire services. There is no information on the landing page associated with the disputed domain name about Respondent, its purpose, business, or proposed business, if any. Respondent’s use of the disputed domain name which is confusingly similar to Complainant’s registered trademark JET2 enables Respondent to draw Internet users to the website associated with the disputed domain name for profit by misleading Internet users associating the disputed domain name with Complainant. Respondent is receiving click-through profits from the links associated with the parked pages. Linking to websites of institutions that are active in the same field as Complainant is evidence of bad faith use. See, e.g., Google Inc. v. Forum LLC, NAF Claim No. 1053323 (finding bad faith registration and use where <googlenews.com> resolves to a commercial search engine website generating click-through advertising fees).

The Panel finds that Complainant has proven on a balance of probabilities that Respondent has used the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy, and that Complainant satisfies the requirement under paragraph 4(a)(iii) of the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <jet2carhire.com> be transferred to Complainant.

Ross Carson
Sole Panelist
Dated: August 2, 2011

 

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