WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France v. Domain Administrator, See PrivacyGuardian.org / Domain Admin, Whois Privacy Corp. / Natasha Gupta
Case No. D2019-0348
1. The Parties
The Complainant is Société Air France of Roissy Charles de Gaulle, France, represented by MEYER & Partenaires, France.
The Respondent is Domain Administrator, See PrivacyGuardian.org of Phoenix, Arizona, United States of America (“United States”) / Domain Admin, Whois Privacy Corp. of Nassau, Bahamas / Natasha Gupta of Gurgaon, India.
2. The Domain Names and Registrars
The disputed domain names <airfrance-billetfly.com>, <airfrance-billets.net>, <airfrance-flyers.com>, <airfrance-flying.com>, and <airfrance--fr.com> are registered with NameSilo, LLC and the disputed domain name <airfrance2018.com> is registered with Internet Domain Service BS Corp (the “Registrars”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 14, 2019. On February 15, 2019, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On February 15, 2019, the Registrar NameSilo, LLC transmitted by email to the Center its verification response disclosing registrant and contact information for five disputed domain names which differed from the named Respondent and contact information in the Complaint. On February 19, 2019, the Registrar Internet Domain Service BS Corp transmitted by email to the Center its verification response for one domain name confirming that the Respondent is listed as the registrant and providing the contact details. The Center sent an email communication to the Complainant on February 20, 2019, 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 February 22, 2019.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 26, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 18, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 19, 2019.
The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on March 27, 2019. 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 was established in 1933 from the merging of several airline companies. Today the business operates in alliance with KLM and operates worldwide.
The Complainant is the owner of several trademark registrations for the mark AIR FRANCE including, inter alia, International registration No. 828334 (registered on October 20, 2003) and Indian trade mark AIR FRANCE, registration no. 127624, registered on April 2, 2004.
The dates of the domain name registration are as follows:
<airfrance-billetfly.com>, February 5, 2019.
<airfrance-billets.net>, January 24, 2019.
<airfrance-flyers.com>, February 4, 2019.
<airfrance-flying.com>, February 1, 2018.
<airfrance--fr.com>, January 21, 2019.
<airfrance2018.com>, December 1, 2018.
The websites to which the disputed domain names direct are inactive. However, previously the websites displayed a survey to Internet users pretending to be the Complainant.
5. Parties’ Contentions
The Complainant is the owner of the AIR FRANCE trademark and alleges that the disputed domain names are confusingly similar to its trademark. The Complainant points out that the use or absence of punctuation marks, such as hyphens or spaces, does not alter the assessment. The addition of “fr”, “billetfly”,”billets”,”flyers” or “2018” suffixes to the AIR FRANCE mark does not give rise to distinctiveness since these are merely generic terms. Likewise, by using the suffix term “flying” the Respondent is trying to create confusion as the term refers to the business activity of the Complainant.
The Respondent is not related to the Complainant in any manner. Indeed, the Complainant has not granted authorization to the Respondent to apply or use its trademarks in any of the disputed domain names and the Respondent has never carried out any activity for the Complainant. Further, to the Complainant’s best knowledge the Respondent is not known under the term “airfrance”.
In addition, the Complainant asserts that the disputed domain names have been used to provide a webpage survey service which reproduces the Complainant’s mark and name and purports to offer free flight tickets. Therefore, the Respondent is trying to impersonate the Complainant in an offer of services which should be considered as non legitmate for the purposes of the UDRP.
With regard to the third element, the Complainant contends that the domain names have been registered and are being used in bad faith. Since the AIR FRANCE trademark is well known it is apparent for the Complainant that the Respondent could not have ignored it but for the purpose of attracting, for commercial gain, Internet users to the website by creating a likehood of confusion with Complainant’s trade marks.
Further, by using a proxy service and by carrying out phising activities as described above the Respondent did try to remain anonymous in an attempt to avoid potential criminal responsibilities in the phising scheme displayed. Such use of the disputed domain names is to be considered in bad faith. Moreover, the lack of disclaimer or any type of explanation displayed in the websites strengthens the inference Respondent’s bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed the Complainant must satisfy the Panel that:
(i) the disputed domain names are 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 names; and
(iii) the disputed domain names were registered and are being used in bad faith.
There are no exceptional circumstances within paragraph 5(e) of the Rules to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response. Under paragraph 14(a) of the Rules in the event of such a “default” the Panel is still required “to proceed with a decision on the complaint”, whilst under paragraph 14(b) it “shall draw such inferences there from as it considers appropriate”. This dispute resolution procedure is accepted by the domain name registrant as a condition of registration.
A. Procedural Issues: Multiple Respondents
The Panel considers WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.2: “Where a complaint is filed against multiple respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario”.
It is apparent for the Panel that the websites are subject to common control. Each disputed domain name resolved to a deceptive survey in an attempt to impersonate fraundently the Complainant. It also takes into account that previous panel decisions have come to the conclusion that Natasha Gupta and Whois Privacy Corp domain name registrations were subject to common control by the same person. See Delta Air Lines, Inc. v. Whois Privacy Corp.; WhoisGuard, Inc.; Domain Protection Services, Inc.; PrivacyGuardian.org; Steve David; Kamran Khan; Domain Admin, Whois Privacy Corp.; Steven Fransworth; Lisa Alex; Natasha Gupta; Asgar Khan; Marcellus Coleman; Steve David; Raul Bogdan; Irfan Khan; Waseem A Ali; Tonicia Kelly; James Vills; George Eden, YPS, WIPO Case No. D2018-1564. The Panel also takes this view in the present case.
Being that as it is, the Panel finds that it would be procedurally efficient and fair to the Parties to consolidate the proceedings.
B. Identical or Confusingly Similar
The standing test for confusing similarity involves a comparison between the Complainant’s mark and the disputed domain names. According to the file the Complainant has demonstrated registered trademark rights in the mark AIR FRANCE. It is obvious for the Panel that a side-by-side comparison reaches the conclusion that the Complainant’s trademark is entirety reproduced in every disputed domain name of the case.
The addition of the terms “fr”, “billetfly”, “billets”, “flyers”, “2018”, or “flying” does not prevent a finding of confusingly similarity. The trademark is recognizable and the term or number does not provide distinctiveness. See WIPO Overview 3.0, section 1.8. Further, it is well established in decisions under the UDRP that generic Top-Level Domains (“gTLDs”) are typically irrelevant to the consideration of identity or confusing similarity between a trademark and a domain name.
Therefore, the first requirement is met under paragraph 4(a)(i) of the Policy.
C. Rights and Legitimate interests
In relation to paragraph 4(a)(ii) of the Policy, the Panel finds that the Complainant has made a prima facie showing that the Respondent does not have rights or legitimate interests in the disputed domain names. For such a finding the Panel rests on the following:
The Complainant has not authorized the Respondent to use the AIR FRANCE trademark in the disputed domain names.
The Respondent is not commonly known by the disputed domain names.
The Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services. The Complainat has provided evidence that the service displayed by the Respondent attempted to impersonate the Complainant. The offer of free tickets in the designated web survey is more likely to be used as bait to collect personal data from Internet users. And this is not a legitimate activity for the purposes of the UDRP.
However, the Respondent did not offer any rebuttal although it was duly notified of its right to do so. If the respondent fails to come forward with such relevant evidence to counter a complainant’s prima facie case, the complainant is deemed to have satisfied the second element. See WIPO Overview 3.0, section 2.1.
Therefore, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore satisfied the requirement of paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad Faith
For the purposes of the Policy, a complainant must establish that the disputed domain names were registered and used in bad faith by the respondent.
The AIR FRANCE trademark enjoys substantial fame due to the extensive and long use. Accordingly, for the purposes of the UDRP the trademark is to be considered well known. The Panel notes that such a finding has already been determined by previous UDRP decisions. See Societé Air France v. Whois Privacy Corp., WIPO Case No. D2017-2143; and Societé Air France v. Spiral Matrix, WIPO Case No. D2005-1337.
Further, it is worth highlighting Société Air France v. Whois Privacy Corp., supra, a case concerning the same parties where the panel concluded that the respondent knew of the complainant’s trademark and activities: “the Respondent has registered the domain names with full knowledge of the Complainant’s trademark and uses them for deceptive purposes, including phishing and/or misleading and diverting Internet traffic, constituting bad faith”.
Moreover, the addition of terms such as “billetfly”, “billets” or “flying” draws a connection with the services offered by the Complainant and associated with its trademarks. In the Panel’s view such a practice strengthens the inference of the Respondent’s knowledge of the AIR FRANCE trademarks.
All of the above determines that the Respondent was familiar with the AIR FRANCE trademark at the moment of the registration of the disputed domain names.
With respect to the use of the disputed domain names in bad faith the Panel agrees with the Complainant that the Respondent has engaged in a pattern of conduct of registering domain names confusingly similar to a trademark owner. WIPO Overview 3.0, section 3.1 notes that “This may include a scenario where a respondent, on separate occasions has registered trademark abusive domain names, even where directed at the same brand owner”.
The Panel also notes that the overall circumstances in Delta Air Lines, Inc., supra, are identical to the present case. That is to say, a well-known mark at issue, a respondent with a cybersquatting background, and a similar “modus operandi”, that is to say, that the fraudulent surveys are deemed to harvest personal data from Internet users. In any case, such use is not to be considered a legitimate, good faith use under the UDRP.
All the disputed domain names are currently inactive. The Panel agrees with the Complainant that when considering the present use the passive holding constitutes use in bad faith for the following reasons: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity, and, (iv) the phising scheme by impersonating the complainant.
Consequently, the requirements of paragraph 4(a)(iii) of the Policy have been satisfied.
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 names <airfrance-billetfly.com>, <airfrance-billets.net>, <airfrance-flyers.com>, <airfrance-flying.com>, <airfrance--fr.com>, and <airfrance2018.com> be transferred to the Complainant.
Date: April 10, 2019