WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France v. Domains by Proxy, Inc. / Olivier Foulques
Case No. D2011-1113
1. The Parties
The Complainant is Société Air France of Roissy CDG, France, represented by MEYER & Partenaires, France.
The Respondent is Domains by Proxy, Inc. of Arizona, United States of America (the “United States”) / Olivier Foulques of Poincy, France.
2. The Domain Name and Registrar
The disputed domain name <airfranceipad.com> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 1, 2011. On July 1, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On July 6, 2011, GoDaddy.com, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 13, 2011, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on July 22, 2011.
The Center verified that the Complaint together with the amended 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 July 26, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was August 15, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 16, 2011.
The Center appointed André R. Bertrand as the sole panelist in this matter on August 26, 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 Société Air France, incorporated under this name in 1933, is a major airline company.
The Complainant is the owner of several trademark registrations, such as:
AIR FRANCE, international trademark n°414038 registered in classes 12, 16, 21 and 39 on March 21, 1975;
AIR FRANCE, community trademark n°002528461, registered in classes 6, 8, 9, 12, 14, 16, 18, 19, 20, 21, 24, 25, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44 and 45, on July 10, 2003 (filed on January 9, 2002);
AIR FRANCE, French nominative trademark n°3575442 in classes 9, 16, 18, 25, 28, 35, 36, 37, 38, 39, 41, 42, 43, 44 and 45 registered on May 15, 2008.
The Complainant is also the owner of several domain names and it operates an international web portal under the domain name <airfrance.com>.
The Respondent, Domains by Proxy, Inc. is located in the United States. The disputed domain name was registered on December 29, 2010. The underlying registrant of the disputed domain name, Mr. Olivier Foulques, is a French resident.
5. Parties’ Contentions
The Complainant contents that: (i) the disputed domain name is if not identical at least confusingly similar to the trademark and domain names in which the Complainant has rights; (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.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove all of the following in order for its contentions to be supported in the proceeding:
(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.
In light of the documents submitted by the Complainant, the Panel considers not only that it is the legitimate owner of the trademark AIR FRANCE, but also that since Air France exists since 1933, and in light of the numbers of persons which have used its airplanes (i.e. 43.3 million passengers between April 2001 and March 2002, for revenues totalling € 12.53 billion), its trademark AIR FRANCE can be considered as being well-known if not famous.
A. Identical or Confusingly Similar
The Complainant claims that the disputed domain name <airfranceipad.com> is confusingly similar to its trademark AIR FRANCE.
The domain name <airfranceipad.com>, comprises two words, i.e. the words “air france” and the word “ipad”, which is also a well-known trademark registered by Apple Inc.
Similarly to Orange Personal Communications Services et Orange France contre Matthieu Simon, WIPO Case No. DFR2008-0011, regarding the domain name <orangeiphone.fr>, where the registered trademark IPHONE was added to the trademark ORANGE, here the trademark AIR FRANCE is reproduced in its entirety in the disputed domain name, and the addition of the trademark IPAD does not diminish the risk of confusion.
Thus this Panel agrees that the disputed domain name <airfranceipad.com> is confusingly similar to the trademark AIR FRANCE.
B. Rights or Legitimate Interests
The Respondent did not reply to the Complainant’s contentions.
Thus the Panel adopts the principles set forth in Société Air France v. Veraxio Internet Design Qualite-Air-France.Com, WIPO Case No. D2006-0846, and “finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The burden accordingly shifts to the Respondent to dispute the Complainant’s allegation. The Policy, paragraph 4(c), gives assistance to respondents as to how they may demonstrate their rights and legitimate interests in the domain name. The circumstances listed are non-exhaustive, and proof of any one of these would suffice for the purposes of the Respondent demonstrating its rights or legitimate interests”.
Paragraph 4(c) of the Policy states as follows:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial 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.
“In not responding to the Complaint, the Panel is unable to make a finding other than that the Respondent has no rights or legitimate interests in the disputed domain name” (See Société Air France v. Veraxio Internet Design Qualite-Air-France.Com, WIPO Case No. D2006-0846). In the present case the Respondent has provided no evidence of a bona fide offering of goods or services corresponding to the disputed domain name, nor any evidence which shows that the Respondent has been known by the disputed domain name or acquired rights in the mark AIR FRANCE or <airfranceipad.com>. Further, the hyperlinks on the website of the disputed domain name to sites that offer airplane tickets for sale are inconsistent with legitimate noncommercial or fair use of the disputed domain name. The Respondent appears, rather, to be using the disputed domain name for commercial gain, to misleadingly divert consumers.
Thus, the Panel finds that the second element of paragraph 4(a) of the Policy has been satisfied.
C. Registered and Used in Bad Faith
Due to the fact that the trademark AIR FRANCE is well-known, if not famous, as pointed out by the Complainant, it is difficult to imagine that the Respondent could have ignored the trademark AIR FRANCE at the time he applied for registration of the confusingly similar domain name.
The Panel agrees with the fact that this implies a presumption of bad faith.
Not only did the Respondent not reply to the Complainant’s contentions, but also it appears from the information disclosed by the Registrar GoDaddy.com, Inc, that behind the Privacy Shield the real owner of the disputed domain name seems to be a French resident, Mr. Olivier Foulques.
The circumstances of bad faith are not limited to the facts listed at paragraph 4(b) of the Policy.
In the Panel’s view, the fact that the real owner of the disputed domain seems to hide his name and address when registering the disputed domain name is a strong indication that the disputed domain name has actually been registered and used in bad faith. The fact that the Respondent appears to be using the disputed domain name for commercial gain, to misleadingly divert consumers, confirms the Respondent’s bad faith.
In light of the above, the Panel finds that the disputed domain name has been 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 disputed domain name <airfranceipad.com> be cancelled.
André R. Bertrand
Dated: August 31, 2011