WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France v. SZK.COM
Case No. D2003-0518
1. The Parties
The Complainant is Société Air France of Roissy CDG, France, represented by MEYER & Partenaires, France.
The Respondent is SZK.COM, C/O Michele Dinoia, of Pineto, Teramo, Italy.
2. The Domain Name and Registrar
The disputed domain name <frequenceplus.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 30, 2003. On July 1, 2003, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On July 2, 2003, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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 July 9, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was July 29, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on July 31, 2003.
The Center appointed Torsten Bettinger as the sole panelist in this matter on August 8, 2003. 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 is one of the world's major airline companies. It is the third largest international passenger carrier and the fourth largest freight carrier. It also ranks second world-wide for aircraft maintenance. The Complainant is actually operating an international web portal under the uniform resource locator "http://www.airfrance.com".
FREQUENCE PLUS is the name of Complainantís frequent flyer program, used in commerce since 1992, and designed for all passengers traveling on the Complainantís national and international network.
The Complainant is the registered owner of 43 trademarks consisting or including the words FREQUENCE PLUS in no less than 51 countries in the world, including Italy.
The Complainant is also the owner of several domain names incorporating the term "frequence plus" such as <fréquence-plus.com>, <frequence-plus.net>, <fréquence-plus.org>, <fréquenceplus.org>, <fréquenceplus.net> which all redirect to a website dedicated to the presentation of the Complainantís Frequent Flyer Programme.
The Respondent uses the disputed domain name <frequenceplus.com> to redirect Internet Users to a website which contains various hyperlinks to commercial websites including other airlines and air carriers.
The Respondent is deemed to be known to the Panel from various other UDRP proceedings, within which the domain names of concern were cancelled or transferred as a result of UDRP Decisions.
5. Partiesí Contentions
The Complainant asserts that: (1) The domain name <frequenceplus.com> is identical or confusingly similar to the trademark FREQUENCE PLUS in which the Complainant has exclusive rights; (2) the Respondent has no rights or legitimate interests with respect to the domain name; and that (3) the domain name was registered and is being used in bad faith.
The Complainant alleges that the Respondent has intentionally registered and used the domain name at issue for the only purpose of generating commercial gain by intentionally and misleadingly divert users away from Complainantís website, and profit of Internet traffic from Internet users seeking the Complainantís Frequence Plus flyer program official website.
The Complainant requests that that the Administrative Panel issue a decision that the domain name <frequenceplus.com> be transferred to the Complainant.
The Respondent did not reply to the Complainantís contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The domain name at issue is <frequenceplus.com>. The relevant part of this domain name "frequenceplus" is identical with the trade and service mark registration of the word FREQUENCE PLUS held by the Complainant.
B. Rights or Legitimate Interests
The Policy outlines (Paragraph 4(c)) circumstances which, if found by the Panel to be proved, shall demonstrate the Respondentsí rights or legitimate interests in the domain names. These circumstances are:
(i) before any notice to the Respondent of the dispute, the Respondentís use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with the bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) the Respondent is making a legitimate non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Considering this issue the Panel notes that the Respondent uses a domain name that, apart from the top-level-domain suffix, is identical to the trademark registered by the Complainant and that the Respondent uses the Complainantís trademark on his website without the Complainantís authorization.
Respondent does not trade under the domain name or the mark FREQUENCE PLUS. Furthermore, the Respondent has not been and is not commonly known by said domain name or mark FREQUENCE PLUS.
The Panel further notes that the Respondent has failed to submit a Response in this proceeding. Thus, the Panel is permitted to accept all reasonable allegations and inference in the Complaint as true (See Vertical Solutions Mgmt., Inc. v. webnet-marketing,Inc., NAF Case No. FA0095095; Talk City, Inc. v. Robertson, WIPO Case No. D2000-0009).
Under these circumstances, in the view of the Panel, the Respondent has no rights and legitimate interests in the domain name and that the requirement of Paragraph 4(a)(ii) of Policy is also satisfied.
C. Registered and Used in Bad Faith
The final factor is whether the Respondent registered and is using the domain name in bad faith.
The Complainant provided evidence of facts and the Respondent has not denied these facts, which clearly indicate that the Respondent registered and is using the domain name in bad faith.
(i) Respondent is using the domain name in dispute to divert Internet users to various commercial websites. It can be inferred that Respondent is making a profit from the Internet traffic it diverts to these websites and links. Respondent is therefore using the disputed domain name to cause a likelihood of confusion for its own commercial gain, which is evidence of bad faith registration and use pursuant to Paragraph 4(b)(iv) of the Policy (see Kmart v. Kahn, NAF Case No. FA00127708, finding that if Respondent profits from its diversionary use of Complainant's mark when the domain name resolves to commercial websites and Respondent fails to contest the Complaint, it may be concluded that Respondent is using the domain name in bad faith pursuant to Policy 4(b)(iv)); see also Drs. Foster & Smith, Inc. v. Lalli, NAF Case No. FA0095284, finding bad faith where Respondent directed Internet users seeking Complainantís site to its own website for commercial gain).
(ii) The Respondent is deemed to be known to the Panel from a number of other proceedings, within which the domain names of concern were cancelled or transferred by UDRP Panelists. He registered domain names which contained the names of well-known marks in order to make profit from Internet traffic it diverts to other websites or otherwise trade off the goodwill associated with these marks. By that he violated other peopleís trademark rights, see Venator Group Retail v. Michele Dinoia d/b/a SZK.COM, NAF Case No. FA00101506; Anheuser-Busch v. Michele Dinoia, NAF Case No. FA00114465; Travelzoo v. SZK.COM, NAF Case No. FA00115088; NAF Case No. FA00137098, America Online v. Michele Dinoia a/k/a SZK.COM. The activities of the Respondent in registering these other well-known trademarks as domain names without any apparent authority or trademark rights are strong evidence of bad faith.
The Panel therefore concludes that Respondent registered and is using the domain name <frequenceplus.com> in bad faith and that also the requirement of the Paragraph 4(a)(iii) of the Policy is satisfied.
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 name <frequenceplus.com> be transferred to the Complainant.
Dated: August 22, 2003