WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Flybe Group PLC v. Robb Dobin, theflybe.com
Case No. D2011-1537
1. The Parties
The Complainant is Flybe Group PLC, Devon, United Kingdom of Great Britain and Northern Ireland (the “United Kingdom”), represented by Eversheds, LLP, United Kingdom.
The Respondent is Robb Dobin, theflybe.com, Honolulu, Hawaii, United States of America.
2. The Domain Name and Registrar
The disputed domain name <theflybe.com> is registered with Active Registrar, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 13, 2011. On September 13, 2011, the Center transmitted by email to Active Registrar, Inc a request for registrar verification in connection with the disputed domain name. On September 14, 2011, Active Registrar, Inc. 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 September 20, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was October 10, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 14, 2011.
The Center appointed Ross Wilson as the sole panelist in this matter on October 31, 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 Complainant established business in 1979 and has been using the name FLYBE since 2002. It is Europe’s largest independently owned regional airline carrier operating nearly 200 routes from 75 departure points across 13 European countries. FLYBE is largest domestic airline in the United Kingdom. In 2010 it carried more than six million passengers. The Complainant’s group turnover in 2010 was GBP 570 million.
The Complainant extensively promotes its brand and trading activities and has built up significant goodwill and reputation in the name FLYBE both in the United Kingdom and internationally.
The trademark FLYBE has been registered in a number of countries. The earliest registration was in December 2004.
On August 11, 2011 the Complainant became aware that the disputed domain name was resolving to a website that was almost an exact copy of the Complainant’s website. On contacting the hosting company for the disputed domain name the company took down the website on August 12, 2011.
A cease and desist letter was sent by the Complainant’s representatives to the Respondent on August 17, 2011. The next day the disputed domain name website re-appeared redirecting users to a page on a sub-domain of <0adz.com>. Again the website was identical in all material respects to the Complainant’s site. On August 22, 2011 the Complainant contacted the new domain host and the website was promptly shut down. Currently the disputed domain name does not resolve to an active website.
5. Parties’ Contentions
The Complainant contends the disputed domain name is virtually identical to its trademark. It holds that the inclusion of the definitive article “the” does not alleviate the likelihood of confusion between the disputed domain name and the Complainant’s trademark.
The Complainant considers the Respondent has no right to use its trademark protected name. The Respondent has never been connected to, affiliated with or authorised by the Complainant in any way and has no legitimate interest in the FLYBE trading name which is a brand name and has no usage in common language.
The Complainant contends that the Respondent’s website is a dummy copy of the Complainant’s website and consequently the disputed domain name is not being used in the course of any legitimate trade or bona fide offering of goods or services. It is the Complainant’s opinion that the Respondent is using the disputed domain name in order to assist him in committing fraud. The primary reason for the Respondent choosing the disputed domain name is to exploit the fact that Internet users will instantly recognise the name “Flybe” as the relevant part of the disputed domain name and assume that the website to which it resolves is that of the Complainant. According to the Complainant it is likely that the Respondent is receiving revenue in the form of a commission or similar payment from the recruitment website where the Respondent was posing as the Complainant.
In the Complainant’s view the Respondent has never been authorized to use its name and there is no evidence that the Respondent has ever used or been known by the name “Flybe”.
The Complainant believes that the disputed domain name was registered and used in bad faith because of the Respondent’s deliberate use of a domain name that is so clearly aimed at creating confusion with the Complainant’s website, the use of the disputed domain name website in connection with fraudulent emails and posts, the use of a close variant of the Complainant’s website address and a copy of the Complainant’s genuine website, the false address details on the WhoIs record for domain names and the re-appearance of the website after it had been shut down by the initial domain administrator.
Finally, the Complainant contends that the Respondent has no intention to comply with the Complainant’s request to voluntary transfer the disputed domain name to it.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant provided evidence demonstrating that it has registered rights in the trademark FLYBE since 2004.
The disputed domain name consists of the Complainant’s trademark, in its entirety, together with inclusion of the word “the”. It has been held in many previous UDRP cases that incorporating a trademark in its entirety is typically sufficient to establish that a domain name is identical or confusingly similar to a registered trademark (see Oakley, Inc. v. Kate Elsberry, Elsberry Castro, WIPO Case No. D2009-1286 and World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles, WIPO Case No. D2000-1306).
The addition of the definitive article “the” cannot be considered distinctive. As found in FinterBank Zurich v. Shumin Peng, WIPO Case No. D2006-0432, the word “the” does not provide any specification or sufficient distinction from the Complainant or its trademark. In that case the panel found that “the addition of the English word “the” serves to emphasis the Respondent’s domain name is the website for Finter Bank Zurich which increases the credibility and genuineness of the disputed domain name thereby heightening the confusion of the Internet users. Similarly, in Lernco, Inc. v. Dezider Banga, WIPO Case No. D2010-0290 the panel found that where the disputed domain name incorporates the Complainant's trademark in its entirety and the addition of the article “the” and the gTLD “.com” do not preclude confusion.
In view of the above, the Panel finds that the Complainant’s trademark is readily recognizable as such within the disputed domain name despite the addition of the word “the” and, overall, it is likely to lead to Internet user confusion. Therefore, the Complainant has proven that the disputed domain name is identical or confusingly similar to the trademark in which it has demonstrable rights. The Complainant has satisfied the first element of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out how a respondent can demonstrate rights to or legitimate interests in a disputed domain name. In this case, the Respondent has not filed any submission or evidence to demonstrate its rights or legitimate interests in the disputed domain name. Consequently, paragraph 14(b) of the Rules allows the Panel, in the absence of exceptional circumstances, to draw such inferences from the absence of a Response from the Respondent as it considers appropriate.
The Panel finds that the Respondent is trying to benefit from the reputation of the Complainant’s widely-known trademark. The Respondent has chosen to use a domain name that contains the Complainant’s trademark in its entirety without authorisation by the Complainant. According to the Complainant’s unrefuted allegations the disputed domain name resolved to a website which virtually replicated the Complainant’s website and was used to provide the Respondent’s contact details to Internet users redirected from a recruitment website where the Respondent was posing as the Complainant. Currently the dispute domain name is being used passively and does not resolve to an active website. No rights or legitimate interests derive from this type of use of another’s trademark. Previous UDRP panels have held that rights and legitimate interests cannot be created where the respondent would not choose such a domain name unless it was seeking to create an impression of association with the complainant (see Drexel University v. David Brouda, WIPO Case No. D2001-0067).
There is no evidence before the Panel to show that the Respondent was acting in pursuance of any rights or legitimate interests when registering the disputed domain name. In addition, the Complainant has denied having any connection with the Respondent or providing any license or authorisation at all. In Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055, the panel stated, “in the absence of any license or permission from the Complainant to use any of its trademarks or to apply for or use any domain incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the domain name could be claimed by the Respondent”.
Despite the opportunity provided through this administrative procedure, the Respondent has chosen not to rebut the Complainant’s case or assert any rights in the disputed domain name.
Based on the above, the Panel considers the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel is satisfied that the Complainant has proven the second element of the Policy.
C. Registered and Used in Bad Faith
For the purposes of determining if there was bad faith registration and use, the Panel considered the circumstances of the registration and use of the disputed domain name as set out in paragraph 4(b) of the Policy, noting that it does not impose any limitation on how the registration and use of the domain name in bad faith may be evidenced.
The Panel considers that the Complainant has made a case that the Respondent has registered and used the disputed domain name in bad faith.
The Respondent’s use of the disputed domain name represents deliberate disregard of the Complainant’s trademark rights. Clearly the Respondent knew of the Complainant’s well-known trademark at the time of registration because the Complainant’s mark is used in its entirety in the disputed domain name and the website to which it resolves is almost an exact copy of the Complainant’s website which incorporates images of the Complainant’s trademark. As expressed in Singapore Airlines Limited v. European Travel Network, WIPO Case No. D2000-0641, where the selection of domain names is so obviously connected to the complainant’s trademark their very use by someone with no connection with the company suggests opportunistic bad faith. Similarly, in Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil, WIPO Case No. D2000-1409, where the respondent registered a number of domain names incorporating a well-known trademark in its entirety, the panel stated, “that it is inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the complainant”.
In fact in this case by copying the Complainant’s genuine website the Respondent was deliberating confusing Internet users in order to create the impression that email and posts related to the site were legitimate which in turn assisted him in defrauding potential job applicants.
Noting that the Respondent has not rebutted any of the Complainant’s Complaint the Panel considers that the Respondent’s choice of the domain name was a deliberate action to gain a commercial advantage. As stated in Oakley, Inc. v. Joel Wong/Blue Host.com- INC., WIPO Case No. D2010-0100 “It is inconceivable that the Respondent registered the disputed domain name without prior knowledge of the Complainant’s rights”.
The Panel notes that the fact that the disputed domain name is not currently being used does not prevent a finding of bad faith use. The circumstances surrounding the Respondent’s use of the disputed domain name as described above and including the Complainant having a well-known trademark, the Respondent failing to respond to the complaint and providing false address details provide a compelling case for passive use which past panels have determined is an act of bad faith use (see Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003).
On the basis of the above and the Respondent posing as the Complainant to carry out fraudulent activities, the apparent false contact details registered by the Respondent and the fact that the Respondent has no rights or legitimate interests in the disputed domain name, the Panel is satisfied that the Respondent’s conduct falls within paragraph 4(b)(i) and 4(b)(iv) of the Policy. Therefore, the Panel finds that the Complainant has demonstrated that the disputed domain name was registered and used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <theflybe.com> be transferred to the Complainant.
Dated: November 14, 2011