WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Jet2.com Limited v. Contact Privacy Inc. Customer 0130301837 / Jonathan Whittle
Case No. D2016-0812
1. The Parties
1.1 The Complainant is Jet2.com Limited of Leeds, Yorkshire, United Kingdom of Great Britain and Northern Ireland, represented by Kempner & Partners LLP, United Kingdom.
1.2 The Respondent is Contact Privacy Inc. Customer 0130301837 of Toronto, Ontario, Canada / Jonathan Whittle of Merseyside, United Kingdom.
2. The Domain Names and Registrar
2.1 The disputed domain names <jet2holidayvillas.com> and <jet2villas.com> (the “Domain Names”) are registered with Tucows Inc. (the “Registrar”).
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 25, 2016, in respect of the <jet2villas.com> Domain Name only. At or about that time the publically available details for the registrant of that Domain Name, named a privacy service, which is presumably the privacy service of the Registrar.
3.2 On April 25, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the <jet2villas.com> Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response identifying Jonathan Whittle as the underlying registrant for that Domain Name and providing contact details for that individual.
3.3 The Center sent an email communication to the Complainant on April 26, 2016, 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 April 28, 2016.
3.4 On May 11, 2016, the Complainant submitted a second amended Complaint to the Center adding the Domain Name <jet2holidayvillas.com> to the Complaint. On May 12, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the <jet2holidayvillas.com> Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response confirming that Jonathan Whittle is listed as the registrant and providing related contact details. References to the Respondent in the rest of the decision are intended to be references to Mr. Whittle, save where the contrary is apparent.
3.5 On May 16, 2016, the Complainant’s lawyers sent an email to the Center. In that email they informed the Center that the Complainant had commenced proceedings against the Respondent in the English High Court and set out the Complainant’s reasons for doing so. In that email they also asked the Panel to exercise its discretion to continue the administrative proceeding and proceed to a decision, once again providing reasons as to why this should happen.
3.6 The Respondent responded the following day by means of an email directed to the Center and the Complainant’s lawyers. In that email he stated as follows:
“We have suspended any use of any trade mark and have ‘parked’ all our domains. This has been communicated.
We have put on hold any web site plans, and have more than fairly offered to sell the domains to the complainant, for our requested price.
With this our request is that we now have no case to answer for, as we are completely entitled to own and ‘park’ the said domains.
We do wish to see the outcome of the complaint, but our .co.uk domains simply re-directed to our .com domains, for which I’m not sure any content on a .com domain is within your authority, please correct me if I am mistaken, I thought Nominet was just.co.uk domains?”
3.7 The Center verified that the Complaint as amended 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”).
3.8 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 17, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 6, 2016.
3.9 On May 17, 2016, the Respondent sent a further email to the Center and the Complainant’s lawyers. In that email the Respondent stated as follows:
“Please can you record the actions we have taken
1. We have completely suspended all the work and planned launch of of [sic] project - So to be 100% clear this is not and will not be hosting our planned website now
2. We have ‘parked’ all of our domains whilst we look for a suitable buyer.
3. We have made JET2.com an exclusive offer to buy these domains that expires today at 17:00, before we will seek an alternative buyer.
4. This now removes any claim against us for any trade mark or copyright infringement.”
3.10 The Respondent then sent a further email later that day in which the Respondent stated:
“In our eyes there is no valid claim to any complaint now against us and request that all these cases are closed.”
3.11 Subsequently, on May 18, 2016, the Respondent sent a further email to the Center. In that email he stated as follows
“Our use of the words ‘jet2’ in our domain names are used in the context of ‘Jet off to’ Just like ‘first4’ or ‘A1’, as this has in our case a use \ meaning other than being linked to any brand or tied specifically to a company, we seek that this is taken into account during your investigation.”
The Respondent also made reference to other proceedings commenced by the Complainant at Nominet in relation to a “.co.uk” domain name.
3.12 On May 20, 2014, the Complainant’s lawyers sent a further email to the Center in which they claimed that the Parties had agreed to settle this matter. In support of that contention they attached a copy of an order made in the English High Court proceedings. This order took the form of what English lawyers would characterise as a “Tomlin Order”. The Tomlin Order recorded various undertakings, that the Respondent had given to the court and stayed that litigation subject to either party being able to apply to the court to seek enforcement of a “Domain Name Transfer Agreement” that was attached as a Schedule to that Order. The undertakings included an undertaking:
“not to dispose of, charge, license or otherwise deal in any domain names containing ‘Jet2’ or any name confusingly similar thereto without the consent of the Claimants”
but did not make any provision for the transfer of any domain name. This was instead covered in the attached “Domain Name Transfer Agreement”, in which the Respondent agreed to transfer five domain names to the Complainant, which included the two Domain Names the subject matter of these administrative proceedings.
3.13 The Center appointed Matthew S. Harris as the sole panelist in this matter on June 15, 2016. 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.
3.14 Extensive further email correspondence was sent to the Center by both Parties subsequent to the Panel’s appointment. It is not necessary to set out these emails in any detail save to record that although the Complainant was content for this matter to be settled and dealt with in accordance with the procedure provided for by paragraph 17(a)(iii) of the Rules, it complained that the Respondent has refused to sign a completed Standard Settlement Form exactly in the form set out in Annex F to the Supplemental Rules. It also stated that if the Respondent was not prepared to sign this document, it wanted the proceedings to continue.
3.15 As a consequence, the Center at the Panel’s request sent a communication to the Parties on June 20, 2016 as follows:
“The Center has provided a copy of your correspondence to the Panel. The Panel has informed us that it has already reviewed the case filed in this case and had started to draft its decision in this matter. It was the Panel’s intention to issue a decision in an abbreviated form similar to that adopted in Statoil ASA v. gaelle etienne / WhoisGuard Protected, WIPO Case No. D2015-1812, in reliance upon the parties’ agreement as to the transfer of the disputed domain names as set out in the Tomlin Order previously made in the related High Court proceedings.
If for any reason the parties would prefer that this not be done and that the proceedings instead be terminated pursuant to paragraph 17(a)(iii) of the Rules, they should file a completed Standard Settlement Form as set forth in Annex F to the WIPO Supplemental Rules. The Panel requests that this be done by no later than 5 pm (Central European Summer Time) on Wednesday 22 June 2016.”
3.16 As at the date of this decision no document signed by both Parties in the form provided by Annex F to the Supplemental Rules has been filed with the Center.
4. Factual Background
4.1 The Complainant is a leisure airline. It commenced its operations in February 2003 from Leeds Bradford International Airport, in the United Kingdom. Currently, its aircraft fly between eight United Kingdom airports and fifty popular holiday destinations in more than fifteen European countries, as well as the United States of America. From 2003 to 2015 its turnover increased from GBP 62 million to GBP 719 million.
4.2 The Complainant is the owner of various trade marks around that comprise or incorporate the term “Jet2”. They include:
(i) European Union Trade Mark Registration no. 004551875, registered on March 2, 2007, for the word mark JET2 HOLIDAYS in classes 9, 16, 39 and 43; and
(ii) European Union Trade Mark Registration no. 005387791, registered on June 8, 2010, for the word mark JET2 in relation to, amongst other goods and services, classes 39 and 43.
4.3 The Domain Name <jet2holidayvillas.com> was registered on July 28, 2010. The Domain Name <jet2villas.com> was registered on February 12, 2012.
4.4 The Respondent would appear to be an individual located in the United Kingdom.
5. Parties’ Contentions
5.1 Given the matters set out in the Procedural History section of this decision and the Panel’s reasoning below, it is not necessary to set out the Parties’ contentions in this matter in any further detail.
6. Discussion and Findings
6.1 As the Panel has already recorded in the Procedural History section of this decision, the Respondent has agreed that the Domain Names be transferred to the Complainant. The Parties have also been informed that the Panel proposes to deal with this matter on the basis of that consent without the need to issue a substantive decision. Neither Party have suggested that the Panel should not proceed on this basis.
6.2 The basis upon which a UDRP panel might decide to order a transfer or cancellation in circumstances where the respondent consents to this are addressed in some detail at paragraph 4.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”). In the opinion of this Panel, the Policy and the Rules permit a panel to order transfer in such circumstances, subject to the discretion of a panel not to do so should it for any reason consider this to be inappropriate.
6.3 Having reviewed the case file in this matter the Panel is of the view that there is no good reason not to simply order the transfer of the Domain Names.
7.1 For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names, <jet2holidayvillas.com> and <jet2villas.com>, be transferred to the Complainant.
Matthew S. Harris
Date: June 22, 2016