WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France v. Identity Protection Service, Identity Protect Limited / Oltiana Kulla
Case No. D2016-2249
1. The Parties
The Complainant is Société Air France of Roissy, France, represented by MEYER & Partenaires, France.
The Respondent is Identity Protection Service, Identity Protect Limited of Surrey, United Kingdom of Great Britain and Northern Ireland / Oltiana Kulla of London, United Kingdom of Great Britain and Northern Ireland ("UK").
2. The Domain Name and Registrar
The disputed domain name <airfrancelostluggage.com> ("the Domain Name") is registered with 123-Reg Limited (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 4, 2016. On November 4, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 7, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 10, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. In the same email, the Center informed the Complainant that the Complaint did not identify the correct registrar with which the Domain Name was registered at the time the Complaint was filed, and requested the Complainant to submit an amendment to the Complaint accordingly. The Complainant filed an amended Complaint on November 11, 2016. The Complainant filed a second amendment to the Complaint on November 15, 2016.
The Center verified that the Complaint together with the amended Complaint and the second 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 5, 2016. The Response was filed with the Center on November 25, 2016.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on December 19, 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.
4. Factual Background
The Complainant is a French airline passenger and freight company known as one of the largest in the world. It dates back to 1933. The Complainant is a member of the Skyteam alliance since 2000. In 2003, Air France entered into an alliance with KLM, and formed one of Europe's leading airline groups. With a fleet of 583 airplanes, the Complainant serves 231 cities in 103 countries and represents 1500 flights every day.
The Complainant holds many trademarks consisting or including the wording AIR FRANCE, such as Community trademark AIR FRANCE No. 2528461 of October 7, 2003 and International registration No. 1123935 of May 25, 2012. The Complainant also owns many domain names consisting of or incorporating the trademark AIR FRANCE. All of these domain names redirect the Complainant's customers to its official websites.
The Respondent registered the Domain Name on January 11, 2016. The registrant of the domain name was initially reported to be a company that provides WhoIs proxy and privacy services. After the submission of the Complaint, the Registrar disclosed the identity of the Respondent as Oltiana Kulla of London, UK.
5. Parties' Contentions
The Complainant provides evidence of its trademark registrations, and submits that the AIR FRANCE trademark is well-known. The Complainant argues that the Domain Name is similar to the Complainant's trademark AIR FRANCE as the domain name consists of AIR FRANCE and the words "lost luggage", which refers to a sphere of airline travel in which the Complainant operates. The addition of the words accentuates the risk of confusion between the Complainant's trademarks and the Domain Name.
The Complainant further argues that the Respondent is not affiliated or related to the Complainant in any way, or licensed or otherwise authorized to use the AIR FRANCE mark in connection with a website or for any other purpose. The Domain Name is used to activate a pay-per-click "link farm" to host sponsored links related to the Complainant's field of business. Several of these links resolve to competitors' commercial websites. This is not a bona fide offering of goods or services pursuant to the Policy.
Finally, as to the bad faith, the Complainant argues that the Respondent must have known of the Complainant and its trademark. The Respondent registered the Domain Name because she knew the well-known trademark AIR FRANCE and the significant online traffic related to the topic of air travel. Further, the Respondent chose to register a domain name whose meaning was directly related with the Respondent field of business. To the Complainant's best knowledge, the Respondent is not related to any airport service. It is, for the Complainant, hard to imagine that the Respondent has not registered the Domain Name out of bad faith, for some deceptive or illegitimate reason. The Complainant acknowledges that the use of WhoIs proxy service privacy is not in itself evidence of bad faith. Nevertheless, when the service is used to escape legal responsibility, it may indicate a fraudulent intention. The Complainant argues that the aforementioned is indication of bad faith use as well as bad faith registration. In addition, the Respondent chose to activate a pay-per-click parking page with the Domain Name because she knew that AIR FRANCE is a well-known trademark in air travel, and air travel generates Internet traffic.
The Respondent filed an online submission of the Response to the Center on November 25, 2016:
"I flew with Air France on 31 December 2015 when my luggage was lost. The company are impossible to contact when you have problems and do not respond. Eventually, only thanks to the help another airline, my bag was found. It was returned to me approx. 2 months later damaged. Air France did nothing to help me in all the time. At no time did anyone contact me. On one occasion when I managed to speak with an Air France advisor, she was incredibly rude to me and hung up the phone. I registered the domain with the intention to post information for people like myself who's luggage was lost by Air France. I am the final owner of the domain. Air France have never tried to contact me by letter or other means previous to this complaint. My intention is to provide a forum where AF passengers can post and discuss details of their losses. The intended use of this domain is a legitimate one. I would bring the Panel's attention to the ruling of the UK Nominet DRS decisions concerning the registration of Opticalexpressruinedmylife.co.uk."
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established that it has rights in the trademark AIR FRANCE.
The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name consists of the Complainant's trademark AIR FRANCE and the words "lost luggage". The addition of the latter adds to the confusion rather than reduces the risk of confusion.
For the purposes of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain ("gTLD") ".com".
The Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has not granted any authorization to the Respondent to register a domain name containing its trademark or otherwise make use of its mark.
According to the evidence, the Respondent is not affiliated to the Complainant in any way. The Respondent is not generally known by the Domain Name, and has not acquired any trademark or service mark rights in that name or mark.
Taking into account the Respondent's response, the main question under the second element is whether the Respondent's expressed intention to provide a criticism forum may constitute a legitimate interest pursuant to paragraph 4(c)(iii) the Policy.
The Panel does not find it documented that the Respondent is involved in genuine, noncommercial criticism. Despite the Respondent's argument, the Panel finds it more likely that the explanation is primarily a pretext for commercial advantage. The Respondent has activated a pay-per-click parking page, rather than posting any genuine criticism or free speech profile on the web page. There is no evidence to back the Respondent's explanation.
In any event, this Panel is of the view that even if the Respondent were operating a web page devoted genuinely to noncommercial criticism, the right to criticize does not in this Panel's view extend to register and use a domain name that is confusingly similar to the Complainant's trademark. In this case, the Domain Name comprises the trademark together with "lost luggage", something strongly connected to the Complainant's main business, as opposed to a more likely domain name for a criticism web page: the trademark plus an additional, typically derogatory term (e.g. <trademarksucks.tld>). See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 2.4, and the decisions cited under View 1. Under the specific circumstances of this case, the Panel based on the case record cannot find any legitimate interest for the Respondent in the meaning of the Policy.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
It is undisputed that the Respondent was aware of the Complainant's trademark and its business when she registered the Domain Name.
As discussed above, the Panel does not find the Respondent's explanation credible. It is not backed with evidence. The Respondent has chosen to activate a pay-per-click parking page with the Domain Name, which indicates that she knew that AIR FRANCE generates Internet traffic. Therefore, it is more likely than not that the Respondent's intention for registering the Domain Name has been to use it for financial gain.
The Panel finds that on the balance of probabilities the Respondent registered and is using the Domain Name with the intention of confusing Internet users into believing that the Domain Name is associated with the Complainant.
For the reasons set out above, the Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of the paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <airfrancelostluggage.com> be transferred to the Complainant.
Date: December 23, 2016