WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tiger Airways Holding Limited v. Hop Cao
Case No. D2015-0837
1. The Parties
The Complainant is Tiger Airways Holding Limited of Singapore, represented by Amica Law LLC, Singapore.
The Respondent is Hop Cao of Ho Chi Minh City, Viet Nam.
2. The Domain Name and Registrar
The disputed domain name <tigerairways.biz> 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 May 14, 2015. On May 14, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 16, 2015, the Registrar 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 May 20, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 25, 2015.
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 May 26, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 15, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 18, 2015.
The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on June 24, 2015. 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 Tiger Airways Holdings Limited is a private limited company incorporated under the laws of Singapore. It is the parent company of Tiger Airways Pte. Ltd.
The Complainant owns and operates an airline company called "Tiger Airways" / "Tigerair", which has become one of Asia's leading low-fare airlines.
The Complainant has registered the TIGER AIRWAYS name and trademark in Singapore Class 39 (Reg. No. TO320257A) as of December 15, 2003, which covers "Air transport services" and related services. Furthermore, the Complainant holds registrations for the same trademark in another eleven countries.
The Complainant owns the domain names: <tigerair.com>; <tigerairways.com>; <tigerairways.com.au> and <tigerairways.co.in>.
The disputed domain name <tigerairways.biz> was registered on March 7, 2012.
5. Parties' Contentions
The Complainant contends, basically, the following:
That it owns and operates an airline company called "Tiger Airways", which has become one of Asia's leading low-fare airlines.
That it is has rights in the trademark TIGER AIRWAYS since 2003, well before the disputed domain name <tigerairways.biz> was registered on March 7, 2012. Furthermore, that the Complainant has acquired substantial good-will in the mark TIGER AIRWAYS through years of trading under the same and promoting its services. The Complainant's Annual Report shows that over 5.4 million passengers booked Tiger Airway flights in its Financial Year 2011-2012 alone.
It offers an online booking service at "www.tigerways.com", allowing customers to book air tickets online 24 hours a day. Over 90% of the Complainant's customers use this means to book their tickets.
That the disputed domain name <tigerairways.biz> is identical or confusingly to the trademark TIGER AIRWAY in which the Complainant has rights.
That the Respondent has no rights nor legitimate interests in the disputed domain name <tigerairways.biz>, and on the balance of evidence should be found to have been registered and used it in bad faith.
In view of the foregoing, the Complainant requests that the disputed domain name <tigerairways.biz> be transferred to the Complainant.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
For the Complaint to succeed in this proceeding, under paragraph 4(a) of the Policy, it must prove that:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark 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.
A. Identical or Confusingly Similar
The Panel considers that the disputed domain name <tigerairways.biz> and the trademark TIGER AIRWAYS in which the Complainant has rights are almost identical and therefore confusingly similar to the extent of causing Internet user confusion. In this connection, the lack of a space between the words "tiger" and "airways" in the disputed domain name is far from providing an acceptable distinction to avoid such confusion.
In addition, the generic Top-Level Domain Name (gTLD) ".biz" relates to the generic descriptive word "business" and does not serve to identify a specific enterprise as a source of goods or services. Thus, it is totally insufficient to distinguish the disputed domain name from the Complainant's famous trademark TIGER AIRWAYS. Moreover, as extensively resolved in previous UDRP cases, gTLDs may be disregarded in the analysis to determine whether or not there is confusion between the relevant trademark and the disputed domain name.
Therefore, the Complainant has succeeded on this first element of the Policy.
B. Rights or Legitimate Interests
The second element that the Complainant must prove pursuant to paragraph 4(a)(ii) of the Policy is that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Policy in paragraph 4(a) sets out various ways in which a respondent may demonstrate rights or legitimate interests in a domain name.
Although the Policy states that the complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative, i.e., that a respondent has no rights or legitimate interests in a domain name. It has therefore become generally accepted under the Policy that, once a complainant has presented a prima facie showing of a respondent's lack of rights or legitimate interests in a domain name, the burden of production therefore shifts to the respondent. The respondent must then demonstrate its rights or legitimate interests in the disputed domain name in order to refute the prima facie case.
The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and so the burden of production has effectively been shifted to the Respondent, who did not reply to the Complainant's contentions and, therefore, has not made such showing.
In that connection, the Complainant has submitted relevant evidence showing that on its website "www.muavere.com" the Respondent sells tickets from different airlines and also lists links to websites where the particular airline tickets may be purchased, including the disputed domain name <tigerairways.biz>.
The disputed domain name <tigerairways.biz> also resolves to a website selling airline tickets, including Complainant's and its competitors with links in English and Vietnamese. In these circumstances the Respondent's offering does not comply with the Oki data requirements.
The Complainant further indicates that the Respondent is not licensed to use the trademark TIGER AIRWAYS and that there is no evidence of the Respondent being known by a name resembling or similar to the disputed domain name or operating any business under Tiger Airways or a variant thereof.
In terms of the Policy, such use in the present circumstances does not appear to be a noncommercial or fair use of the disputed domain name and therefore, the Panel finds that the Respondent is trying to misleadingly divert consumers. Moreover, the Panel finds that the Respondent is attracting Internet users to its website for commercial gain. Such use cannot be considered a bona fide use, or fair use or noncommercial use.
In view of the foregoing, and in absence of a plausible explanation from the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In accordance with paragraph 4(a)(iii) of the Policy, the third element that a complainant must prove is that the domain name has been registered and is being used in bad faith.
The Policy in paragraph 4(b) sets out various circumstances, which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith.
The Complainant owns and operates an airline company called "Tiger Airways" since 2003, which has become one of Asia's leading low-fare airlines.
In the light of the information and evidence produced by the Complainant, when the Respondent registered the disputed domain name <tigerairways.biz> on March 7, 2012 it knew or should have known the existence of the Complainant's TIGER AIRWAYS trademark and successful airline business, which evidences bad faith registration.
Furthermore, as stated by the Complainant and on the basis of printouts of the website to which the disputed domain name resolves, and in the absence of a rebuttal by the Respondent, the Panel finds that by using the disputed domain name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation or endorsement of the Respondent's website.
For such reasons, the Panel finds that the Respondent both registered and is using the disputed domain name in bad faith and that the Complainant has therefore made out the third element of its case.
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 <tigerairways.biz> be transferred to the Complainant.
Miguel B. O'Farrell
Date: July 6, 2015