WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Etihad Airways v. Domain Admin, Whois Privacy Corp
Case No. D2018-1367
1. The Parties
Complainant is Etihad Airways of Abu Dhabi, United Arab Emirates, represented by Clyde & Co. LLP, United Arab Emirates.
Respondent is Domain Admin, Whois Privacy Corp of Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <eṭihad.com> (xn--eihad-ms1b.com) (the “Domain Name”) is registered with Internet Domain Service BS Corp (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 19, 2018. On June 20, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 21, 2018, the Registrar transmitted by email to the Center its verification response confirming that 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on June 25, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 15, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 23, 2018.
The Center appointed Ingrīda Kariņa-Bērziņa as the sole panelist in this matter on August 1, 2018. 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
Complainant is the national airline of the Emirate of Abu Dhabi, United Arab Emirates. Complainant was established in 2003, and reports that it carried 18.6 million passengers and booked USD 8.26 billion in revenue for 2016, and is the recipient of numerous airline awards. Complainant owns over 270 trademarks registered in the United Arab Emirates and in many other jurisdictions for the word “Etihad” as a plain wordmark, in its stylized form and with other elements, including the following registrations:
- United Arab Emirates Registration No. 155789 for ETIHAD (fig.) in Class 39, filed on April 14, 2011 and registered on May 15, 2013.
- United Arab Emirates Registration No. 158308 for ETIHAD (word mark) in Class 35, filed on June 9, 2011 and registered on June 10, 2012.
Complainant operates the domain name <etihad.com>, which resolves to the Complainant’s website, where customers may book flights and manage their bookings.
The Domain Name was registered on June 9, 2018. The Domain Name resolved to a website purporting to offer visitors free Etihad Airways airline tickets.
5. Parties’ Contentions
Complainant’s contentions can be summarized as follows:
Complainant asserts that the Domain Name is rendered in Punycode text as <xn--eihad-ms1b.com>, which, when entered into an Internet browser, is converted into non-ASCII characters and therefore appears as <eṭihad.com>. The letter “t” has been replaced by a non-ASCII character “ṭ”, and this slight difference would not be noticed by consumers, who would perceive the Domain Name as visible in browsers as identical to Complainant’s own domain name <etihad.com>. The use of this non-standard character does not distinguish the Domain Name from the trademarks of the Complainant.
Complainant’s ETIHAD trademark has been consistently and continually used in connection with airline and cargo transportation services, and has been registered in many jurisdictions around the world. The ETIHAD trademark has been acknowledged as well known in a previous WIPO UDRP decision, namely, Etihad Airways v. John Caldow, WIPO Case No. D2016-2565 (<etihadpartners.com>).
Even if the consumer were to view the Domain Name in Punycode text, <xn--eihad-ms1b.com> contains the word “eihad”, which is highly similar to Complainant’s ETIHAD trademarks as it differs from said marks by only a single letter, and this difference is not immediately noticeable by consumers. The Domain Name is nearly identical to Complainant’s domain name <etihad.com> and therefore there is a high likelihood of confusion, which includes a likelihood of association, which will cause damage to Complainant.
Complainant maintains that Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent is not related to Complainant in any way, nor has Complainant authorized Respondent to use Complainant’s trademarks. Complainant indicates that the Domain Name was registered to operate a fraudulent phishing scheme by diverting consumers from Complainant’s website. Therefore, Respondent must be aware of Complainant’s trademark rights.
Respondent has contacted consumers in the United Arab Emirates via social media messaging platform WhatsApp, claiming to be Etihad Airways and offering free flights to those who visit Respondent’s website. These communications include the Domain Name rendered in the form <eṭihad.com>, which, when viewed on a mobile device, appears in such small print that the letter “ṭ” is perceived as the letter “t”. Once consumers click on the link, they are directed to the website at the Domain Name, where they are informed they have been qualified to receive two free airline tickets, which may be received once the link is shared with 20 Whatsapp contacts and a survey is completed. The website impersonates the website of Complainant by including Complainant’s trademarks and logo, and includes statements indicating Respondent is holding itself out to be Complainant (such as “to celebrate our anniversary” and “we are giving away 2 free tickets”).
Respondent has deliberately chosen a Domain Name that is nearly identical to Complainant’s trademarks and domain name to confuse and mislead the public to obtain personal data from customers. Respondent’s use of Complainant’s trademarks to effect a phishing scheme is clear evidence that Respondent has registered and is using the Domain Name in bad faith. Complainant asserts that the facts are identical to those in Societe Air France v. WhoisGuard Protected, WhoisGuard, Inc. / Irfan Khan, Kamran Khan, WIPO Case No. D2018-0393, in which the panel held that bad faith was proved.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraphs 4(a) of the UDRP requires Complainant to make out three elements:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) Respondent registered and is using the Domain Name in bad faith.
A. Identical or Confusingly Similar
The Panel finds that Complainant has rights in the ETIHAD marks around the world based on sustained and consistent use and registration of the ETIHAD marks. Such rights have previously been acknowledged by UDRP panels in decisions such as Etihad Airways v. John Caldow,supra.
The Panel finds that the Domain Name is confusingly similar to Complainant’s trademarks. The Respondent has replaced the letter “t” in the word “etihad” with the non-ASCII character “ṭ”. Even if the consumer were to notice the non-standard character, the difference is so small that it does not avoid confusing similarity between the Domain Name and Complainant’s trademark.
The Panel therefore finds that Complainant has established the first element of paragraph 4(a) of the Policy in relation to the Domain Name.
B. Rights or Legitimate Interests
The Panel finds that the evidence submitted by Complainant establishes a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name. The Panel finds that Complainant has not granted any permission for Respondent to make use of its trademarks or to register a domain name containing a textual element that is confusingly similar to its trademarks. Respondent has failed to assert any such rights.
Respondent’s use of the Domain Name falsely suggests affiliation with Complainant by incorporating confusingly similar textual elements into the Domain Name and by using Complainant’s word and figurative trademarks in Whatsapp messages and on the website to which the Domain Name resolves. The evidence offered by Complainant supports a finding that the Respondent used the Domain Name to effect a scheme with no legitimate business aim.
The consensus view of UDRP panels is that where a domain name is used for impersonation or passing off, such use “can never confirm rights or legitimate interests on a respondent.” (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, section 2.13.1). The evidence presented clearly indicates that Respondent has attempted to impersonate Complainant. The Panel therefore finds that the Complainant has established the second element of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The evidence offered by Complainant supports a finding of bad faith. In particular, the striking similarity between the Domain Name and Complainant’s ETIHAD trademarks, and the content of the website indicate that Respondent has deliberately attempted to attract Internet users to its website by creating a likelihood of confusion with Complainant’s marks by effectively “typosquatting” and thereby capitalizing on Complainant’s trademark rights. Such likelihood of confusion is heightened by the fact that the structure and overall impression of the Domain Name is identical to Complainant’s own domain name <etihad.com>. Moreover, Complainant has established a strong reputation in its ETIHAD trademarks.
The Panel concludes that Respondent was aware of Complainant and chose the Domain Name for the purpose of improperly directing users to its website and thereby illicitly securing commercial gain. The intention to gain the personal information of individuals, including names, addresses and phone numbers based on confusion between a disputed domain name and a trademark is sufficient to establish bad faith in the registration and use of the Domain Name. In this case the evidence of such behavior is convincing. See, e.g., Société Air France v. WhoisGuard Protected, WhoisGuard, Inc. / Irfan Khan, Kamran Khan, WIPO Case No. D2018-0393.
The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of 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 <eṭihad.com> (xn--eihad-ms1b.com) be transferred to Complainant.
Date: August 15, 2018