WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France v. Zhao XinWei
Case No. D2013-1192
1. The Parties
The Complainant is Société Air France of Roissy CDG Cedex, France, represented by Meyer & Partenaires, France.
The Respondent is Zhao XinWei of Shanghai, China.
2. The Domain Name and Registrar
The disputed domain name <airftance.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 3, 2013. On July 3, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 4, 2013, the Registrar 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 July 5, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was July 25, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 26, 2013.
The Center appointed George R. F. Souter as the sole panelist in this matter on July 30, 2013. 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 a leading international airline company, with 2011 revenues of EUR 24.4 billion. Details of extensive trade mark protection of its AIR FRANCE trade mark have been presented to the Panel.
The disputed domain name was created on February 3, 2012 and registered to the Respondent on January 8, 2013.
5. Parties’ Contentions
The Complainant has drawn the Panel’s attention to a number of prior decisions under the UDRP, including Société Air France v. Alvaro Collazo, WIPO Case No. D2004-0446, Société AIR FRANCE v. Alvaro Collazo, WIPO Case No. D2003-0417 and AIR FRANCE v. Kitchkulture, WIPO Case No. D2002-0158, in which its trade mark AIR FRANCE has been recognized as well-known.
The Complainant has also drawn the Panel’s attention to a number of prior cases under the UDRP in which minor misspellings of its trade mark AIR FRANCE were involved. In Société Air France v. Alvaro Collazo, WIPO Case No. D2004-0446, for example, which involved the disputed domain name <airgrance.com>, the panel found the slight typographical distinction insufficient to distinguish the disputed domain name sufficiently from the Complainant’s trade mark to avoid a finding of confusing similarity, and commented: “The Panel finds it to be of importance that the difference between the domain name and the trademark has the character of a misspelling only. Furthermore, this misspelling is easily made due to the position of the letters “F” and “G” next to each other on a normal keyboard. It is the view of the Panel that the Respondent has deliberately taken advantage of a common misspelling made by Internet users.”
The Complainant contends that the disputed domain name <airftance.com> is confusingly similar to its AIR FRANCE trade mark.
The Complainant alleges that the Respondent has no rights or legitimate interests in the disputed domain name, in particular that he is not related in any way to the Complainant’s business, he is not one of its agents and does not carry out any activity for, or has any business with it, and further that the Respondent is not currently and has never been known under the wording “air france” or “airftance” and no license or authorization has been granted to him to either make any use, or apply for registration of the disputed domain name by the Complainant.
The Complainant alleges that the disputed domain name was registered in bad faith, and is being used in bad faith in that the website operated under the disputed domain name is being used in connection with a ”pay-per-click” landing page, on which commercial links are in the field of travel and airline business, and may lead to diversion of customers to the Complainant’s competitors. The Complainant has also drawn the Panel’s attention to a number of prior decisions under the UDRP involving the Respondent, and alleges that these cases demonstrate that the Respondent is engaged in a pattern of conduct of bad faith registrations.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant or be cancelled:
(i) the disputed domain name is identical or confusingly similar to a trade mark 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
It is well-established in decisions under the UDRP that generic Top-Level Domain (“gTLD”) indicators (i.e. “.com”, “.info”, “.net”, “.org”) may be considered irrelevant in assessing confusing similarity between a trade mark and a domain name. The Panel agrees with this view and considers these indicators to be irrelevant in the present case.
The Panel follows the reasoning of the panel in Société Air France v. Alvaro Collazo, WIPO Case No. D2004-0446 in finding that the transposition of the neighbouring keyboard letters “f” and “g” when comparing AIR FRANCE with <airgrance.com> is insufficient to avoid a finding of confusing similarity, and finds that, in the circumstances of the present case in which the transposed letters “r” and “t” are also keyboard neighbours, the disputed domain name is confusingly similar to the Complainant’s trade mark AIR FRANCE (which the Panel recognizes as “well-known”) and, consequently, finds that the Complainant has satisfied the test set out in paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
It is the predominant view of panels in previous UDRP decisions, with which the present Panel agrees, that an unrebutted prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy.
In this case, the Respondent did not take advantage of the opportunity presented in these proceedings to advance any justification of a claim to rights or legitimate interests in the disputed domain name, and the Panel can draw the appropriate conclusion under the Policy. The Panel accepts the Complainant’s contentions (above) under paragraph 4(a)(ii) of the Policy as establishing a prima facie case, and, accordingly, finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Panel is of the view that, in the case of a well-known trade mark, the finding that the respondent has no rights or legitimate interests in the disputed domain name, may lead, in appropriate circumstances, to a finding that the disputed domain name was registered in bad faith. The Panel regards the circumstances of the present case, in which, in the Panel’s view, the transposition of letters was deliberate, as making it appropriate for the Panel to find that the disputed domain name was registered in bad faith, and the Panel so finds.
It is well-established in prior decisions under the UDRP, with which the Panel agrees, that the use of a website operated under a disputed domain name to potentially divert customers of a complainant to competitors constitutes use in bad faith, and the Panel accordingly finds, in the specific circumstances of the present case, that the disputed domain name is being used in bad faith. The Panel, therefore considers that the Complainant has satisfied the dual test of paragraph 4(a)(iii) of the Policy. The Panel further takes into account that the Respondent appears to be engaged in a pattern of abusive behavior in connection with domain name registrations.
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 <airftance.com> be transferred to the Complainant.
George R. F. Souter
Date: August 14, 2013