WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Société Air France v. Gary Van Til, Response Science Ltd

Case No. D2017-0203

1. The Parties

Complainant is Société Air France of Roissy CDG Cedex, France, represented by MEYER & Partenaires, France.

Respondent is Gary Van Til, Response Science Ltd of Watford, Hertfordshire, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”).

2. The Domain Names and Registrar

The Disputed Domain Names <airfrancedelay.com> and <airfrancedelays.com> are registered with Register.IT SPA (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 2, 2017. On February 2, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Names. On February 6, 2017, the Registrar 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 8, 2017. In accordance with the Rules, paragraph 5, the due date for Response was February 28, 2017. The Center received email communications from Respondent on February 9, February 15, February 21, and February 22, 2017. On March 1, 2017, the Center notified the Parties of the commencement of the Panel appointment process.

The Center appointed Richard W. Page as the sole panelist in this matter on March 13, 2017. 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 French airline passenger and freight company known as one of the largest in the world. Complainant was created on October 7, 1933 from the merger of Air Union, Air Orient, Société Générale de Transport Aérien (SGTA), Compagnie Internationale de Navigation Aérienne (CIDNA) and Compagnie Général Aéropostale.

As a result of the merger between Air Inter and Air France in 1997, “Compagnie Nationale Air France” became “Société Air France”. Air France has also been a member of the Skyteam alliance since 2000. In 2003, another alliance occurred between two pioneering companies, Air France and KLM, which formed a leading airline group in Europe. All of these entities will be collectively referred to as “Complainant”.

With a fleet of 583 airplanes, Complainant serves 231 cities in 103 countries and maintains 1500 flights every day. In 2015, Complainant carried more than 79 million passengers and had EUR 26.05 billion in revenue. The company is operating an international web portal at “www.airfrance.com”.

Complainant has also registered or acquired through legal proceedings many generic Top-Level Domains (“gTLD”) consisting of or incorporating the trademark AIR FRANCE (the “AIR FRANCE Mark”). All of these domain names redirect Complainant’s customers to its institutional websites.

Respondent registered the Disputed Domain Names <airfrancedelay.com> and <airfrancedelays.com> on March 16, 2016.

5. Parties’ Contentions

A. Complainant

Complainant contends that it has used the AIR FRANCE Mark since 1933 and has filed many national, European Union and International registrations including the words “Air France” which it has owned for years. In addition, the AIR FRANCE Mark has been recognized as well-known by numerous UDRP cases.

Complainant contends that the Disputed Domain Names are confusingly similar to the AIR FRANCE Mark because they use the entirety of the AIR FRANCE Mark with only the addition of the non-distinctive words “delay” or “delays” which words are common in the airline travel industry.

Complainant alleges that Respondent has no rights or legitimate interests in respect of the Disputed Domain Names. Complainant further alleges that Respondent is not related in any way to Complainant as an agent, licensee or otherwise. Respondent is not now and was not previously known by the term “AIRFRANCE” or “AIR FRANCE”. The websites to which the Disputed Domain Names resolve are blank. Complainant argues that this activity cannot be considered as being a bona fide offering of good or services, nor a legitimate noncommercial or fair use.

Complainant argues that Respondent has registered and is using the Disputed Domain Names in bad faith. Complainant argues that Respondent knew about the AIR FRANCE Mark and registered the Disputed Domain Names with full knowledge of the AIR FRANCE Mark. The strength of the AIR FRANCE Mark and the use of the Disputed Domain Names in the same business of airline travel can have no other explanation than an attempt to lure Internet users to Respondent’s websites through confusing similarity.

Complaint alleges that Respondent has engaged in several other domain-name schemes in which Respondent reproduces other familiar airline trademarks that also resolve to a blank page. Complainant alleges that Respondent has imbedded Java code in each of these blank websites which helps Respondent track specific information from the Internet users who land on these websites. Collection of information on Internet users from blank websites cannot be considered a good faith use.

B. Respondent

As indicated above, Respondent did engage in a series of email communications with Complainant and the Center, including email communications dated February 9, February 15, February 21 and February 22, 2017. The essence of these communications was to indicate that Respondent consents to the transfer of the Disputed Domain Names to Complainant.

Respondent has not filed a formal Response and the Center has not suspended these proceedings.

6. Discussion and Findings

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

Respondent is not obliged to participate in a domain name dispute proceeding, but if it fails to do so, asserted facts that are not unreasonable will be taken as true and Respondent would be subject to the inferences that flow naturally from the information provided by Complainant. See Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441.

The Panel has noted Respondent’s consent to transfer, but there is no sufficient evidence in this case file that the consent was unilateral and unambiguous. Therefore, even though Respondent has failed to file a Response or to contest Complainant’s assertions, the Panel will review the evidence proffered by Complainant to verify that the essential elements of the claims are met. See paragraph 4.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).

Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:

(i) that the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and,

(ii) that Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and,

(iii) that the Disputed Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

Complainant further contends that the Disputed Domain Names are identical with and confusingly similar to the AIR FRANCE Mark pursuant to paragraph 4(a)(i) of the Policy, because they use the entirety of the AIR FRANCE Mark with only the addition of the dictionary terms “delay” or “delays” which words are common in the airline travel industry.

Respondent has not contested the assertions by Complainant that the Disputed Domain Names are confusingly similar to the AIR FRANCE Mark.

Numerous UDRP decisions have recognized that incorporating a trademark in its entirety can be sufficient to establish that a domain name is identical or confusingly similar to a registered trademark. See F. Hoffmann-LaRoche AG v. P Martin, WIPO Case No. D2009-0323; Dixons Group Plc v. Mr. Abu Abdullaah, WIPO Case No. D2001-0843; V&S Vin & Sprit AB v. Ooar Supplies, WIPO Case No. D2004-0962; Research in Motion Limited v. One Star Global LLC, WIPO Case No. D2009-0227; Covance, Inc. and Covance Laboratories Ltd. v. The Covance Campaign, WIPO Case No. D2004-0206; SoftCom Technology Consulting Inc. v. Olariu Romeo/Orv Fin Group S.L., WIPO Case No. D2008-0792.

The Panel finds for purposes of this proceeding that Complainant has protectable rights in the AIR FRANCE Mark and that the Disputed Domain Names are confusingly similar to the AIR FRANCE Mark. Therefore, Complainant has proven the necessary elements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Complainant contends that Respondent has no rights or legitimate interests in the Disputed Domain Names pursuant to paragraph 4(a)(ii) of the Policy.

Paragraph 2.1 of the WIPO Overview 2.0 states that once Complainant makes a prima facie case in respect of the lack of rights or legitimate interest of a respondent, Respondent carries the burden of demonstrating it has rights or legitimate interests in the Disputed Domain Names. Where Respondent fails to do so, Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.

The Policy paragraph 4(c) allows three nonexclusive methods for the Panel to conclude that Respondent has rights or a legitimate interest in the Disputed Domain Names:

(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Disputed Domain Names or a name corresponding to the Disputed Domain Names in connection with a bona fide offering of goods or services; or

(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Disputed Domain Names, even if you have acquired no trademark or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Disputed Domain Names without intent for commercial gain to misleadingly divert consumers or to tarnish the AIR FRANCE Mark.

Complainant alleges that Respondent is not related in any way to Complainant as an agent, licensee or otherwise, and that Respondent is not now and was not previously known by the term “AIRFRANCE” or “AIR FRANCE”. Complainant further alleges that the websites to which the Disputed Domain Names resolve are blank. Complainant argues that this activity cannot be considered as being a bona fide offering of good or services, nor a legitimate noncommercial or fair use.

Respondent has not contested these allegations.

The Panel finds that Complainant has established the criteria of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Complainant contends that Respondent registered and is using the Disputed Domain Names in bad faith in violation of paragraph 4(a)(iii) of the Policy.

Paragraph 4(b) of the Policy sets forth four nonexclusive criteria for Complainant to show bad faith registration and use of the Disputed Domain Names:

(i) circumstances indicating that you [Respondent] have registered or you have acquired the Disputed Domain Names primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Names’ registration to Complainant who is the owner of the AIR FRANCE Mark or to a competitor of Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the Disputed Domain Names; or

(ii) you [Respondent] have registered the Disputed Domain Names in order to prevent Complainant as owner of the AIR FRANCE Mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you [Respondent] have registered the Disputed Domain Names primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the Disputed Domain Names, you [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the AIR FRANCE Mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product.

Complainant argues that Respondent knew about the AIR FRANCE Mark and has registered the Disputed Domain Names with full knowledge of the AIR FRANCE Mark. The passive holding of the Disputed Domain Names, given the strength of the AIR FRANCE Mark, does not prevent a finding of bad faith.

Furthermore, Complainant alleges that Respondent has engaged in several other domain-name schemes in which Respondent reproduces other well-known airline trademarks that also resolve to a blank page. Complainant alleges that Respondent has imbedded Java code in each of these blank websites which helps Respondent track specific information from the Internet users who land on these websites. Complainant urges that collection of information on Internet users from blank websites cannot be considered a good faith use.

Respondent has not contested these allegations.

Based upon these circumstances, the Panel finds that Complainant has satisfied the requirements of paragraphs 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 Names <airfrancedelay.com> and <airfrancedelays.com> be transferred to Complainant.

Richard W. Page
Sole Panelist
Date: March 15, 2017