WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France v. Domain Admin, Whois Privacy Corp.
Case No. D2019-2192
1. The Parties
The Complainant is Société Air France, France, represented by MEYER & Partenaires, France.
The Respondent is Domain Admin, Whois Privacy Corp., Bahamas.
2. The Domain Name and Registrar
The disputed domain name <aırfrance.com> [xn--arfrance-tkb.com] 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 September 9, 2019. On September 9, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 10, 2019, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on September 16, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 6, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 7, 2019.
The Center appointed James Bridgeman as the sole panelist in this matter on October 16, 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 is a French airline passenger and freight company established in 1933 and is the owner of an international portfolio of registered trademarks for the AIR FRANCE mark including:
- International trademark AIR FRANCE Registration No. 828334 was registered with WIPO on October 20, 2003 in classes 6, 8, 9, 12, 14, 16, 18, 19, 20, 21, 24, 25, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, with subsequent designation of the United States of America;
The Complainant has an established online presence. It maintains a web portal located at the address “www.airfrance.com” for its airline services and is the owner of a portfolio of Internet domain names including <airfrance.com> and <air-france.com>.
The only information available about the Respondent is that provided in the Complaint, the Registrar’s WhoIs, and the information disclosed by the Registrar in response to the Center’s enquiry in this proceeding. The Respondent is a company that provides WhoIs proxy and privacy services.
The disputed domain name was registered on December 20, 2017. The internationalised domain name <aırfrance.com> [xn--arfrance-tkb.com] when used as the address of a website appears on the address bar and seen by the Internet user as <arfrance.com> in the URL which includes the non-Latin character “ı”. The screenshot provided by the Complainant shows that the disputed domain name resolves to an page with the message “403 error”.
5. Parties’ Contentions
The Complainant relies on its rights in the AIR FRANCE trademark acquired through its abovementioned trademark registrations and its extensive use of the mark for many years in association with its well-known airline business.
The Complainant alleges that the disputed domain name is confusingly similar to the trademark AIR FRANCE. From a visual perspective, the disputed domain name <aırfrance.com> [xn--arfrance-tkb.com] reproduces the Complainant’s trademark, letter by letter and it is well established in UDRP cases that “[t]he use or absence of punctuation marks, such as hyphens or spaces, does not alter the fact that a domain name is identical to a mark” (Rolls Royce PLC v. Hallofpain, WIPO Case No. D2000-1709). The absence of space in the domain name between the wordings “Air” and “France” has therefore no consequence regarding their similarity with the trademark.
The Complainant further argues that inclusion of the non-Latin character “ı”, rather than the Latin letter “i” does not alter the identity of the two signs. This is especially true when the disputed domain name is displayed into the URL: “www.aırfrance.com”.
By way of explanation, the Complainant states that while the current configuration of Internet does not accommodate the use of characters other than ASCII characters, ICANN-accredited and VeriSign-certified registrars allow the registration of Internationalized Domain Names (“IDNs”) using-non-ASCII characters in the “.com” and “.net” generic Top-Level Domains (“gTLDs”) among others. Under this system, the IDN <aırfrance.com> is translated into Punycode, an ASCII-Compatible Encoding (“ACE”) designed for use with Internationalized domain names. Punycode transforms a Unicode string into a string of characters allowed in hostname labels (ASCII letters, digits, and hyphens) and back again. When an IDN is typed into the address bar of an enabled browser (such as Microsoft Internet Explorer or Firefox) or clicks an active link, the IDN is automatically converted to Punycode and the user is taken to the web site to which the domain name resolves. The translation is invisible to the user, save that the Punycode translation is shown in the resulting address bar of the web site to which one is taken.
The Complainant submits that previous UDRP panels have found IDNs and their Punycode translations to be equivalent, citing L’Oréal v. Anonymous Corp, Ken, WIPO Case No. D2013-0710 regarding the domain name <elsève.com> [xn--elsve-6ra.com]: “The ELSEVE mark will be instantly recognised in the Domain Name <elsève.com>, notwithstanding that it is presented in lowercase with the accented “è”. The accent on the “e” is an insignificant difference.”
So, the Complainant submits that the disputed domain name <aırfrance.com> [xn--arfrance-tkb.com], which reproduce letter-by-letter is confusingly similar to Complainant’s well knowntrademark AIR FRANCE.
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name arguing that the Respondent is not related in any way to the Complainant’s business: that the Respondent is not one of the Complainant’s agents and does not carry out any activity for or have any business with the Complainant. To the Complainant’s best knowledge, the Respondent is not currently and has never been known as AIRFRANCE or AIR FRANCE; that no license or authorization has been granted to the Respondent to make any use or apply for registration of the disputed domain name.
The Complainant submits that the Respondent has registered, and is using the disputed domain name in bad faith arguing that it has demonstrated the strong reputation and the widely known character of its trademark AIR FRANCE throughout the world and it is obvious that the Respondent has registered the disputed domain name precisely because he knew the well-known character of the Complainant’s trademark.
Furthermore, the Complainant points out that the Respondent uses a WhoIs proxy service to keep private its personal identity. The Complainant acknowledges that the use of such privacy service is not inherently an evidence of bad faith, but nevertheless argues that when such concealment is used to escape one’s legal responsibility, it might then confirm a fraudulent intention.
The Complainant notes that the disputed domain name does not resolve to any active website and generates an error 403 web page and submits that the “403 Forbidden” error does not mean that a domain name is inactive but states that the web server is trying to access a file that does not exist, or that exists but is forbidden or that has been configured improperly. The Complainant submits that in such context, the return of a “403 Forbidden” error remains suspect and might indicate a concealed, if not illegitimate, activity, which is available to some Internet users and unavailable for others (including the Complainant and its legal counsel).
The Complainant adds that such use of the disputed domain name constitutes bad faith use, as “passive holding”. The Complainant argues that such passive use of the disputed domain name also reveals that the Respondent has no serious intent to use it for offering goods and services or promoting a noncommercial cause.
Furthermore, the Complainant submits that the presence of a suspicious “403 error” may let the user to think that the Complainant is linked in one way or another to the disputed domain name but neglects its online communication. This disturbs its online presence and brand image. As stated in previous cases and in “WIPO Overview 2.0”, there is a consensus view about “passive holding”: “With comparative reference to the circumstances set out in paragraph 4(b) of the UDRP deemed to establish bad faith registration and use, panels have found that the apparent lack of so-called active use (e.g., to resolve to a website) of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith”.
Finally, the Complainant complains that no explanation or disclaimer has been displayed on the web page activated by the disputed domain name which will mislead Internet users to believe that the disputed domain name has been somehow endorsed or registered by the Complainant and consequently be prejudicial to the Complainant’s brand image
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4 of the Policy requires the Complainant to establish that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(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 Complainant has furnished convincing evidence of its ownership of rights in the AIR FRANCE trademark acquired through its portfolio of trademark registrations described above and its extensive use of the trademark in its international airline services.
The disputed domain name <aırfrance.com> [xn--arfrance-tkb.com] is an Internationalized domain name. When used as the address of a website for example it appears as appears on the address bar and seen by the Internet user as <aırfrance.com> in the URL which includes the non-Latin character “ı”.
Having compared both, this Panel finds that the disputed domain name is confusingly similar to the Complainant’s AIR FRANCE trademark, regardless of whether the disputed domain name appears as <xn--arfrance-tkb.com> or as <aırfrance.com>.
When the disputed domain name appears as <aırfrance.com> in ASCII on the Internet, which is the more important and meaningful presentation for the purposes of the Policy as it is how the disputed domain name presents to Internet users, the <aırfrance.com>, it is almost identical to the Complainants trademark. The only difference is the non-Latin character “ı”. The difference between the non-Latin character “ı” and the letter “i” in itself is so little as to be imperceptible to an Internet user.
This Panel finds therefore that the disputed domain name is confusingly similar to the trademark AIR FRANCE in which the Complainant has rights. The Complainant has therefore satisfied the first element of the test in paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name arguing that the Respondent is not related in any way to the Complainant's business: that the Respondent is not one of the Complainant's agents and does not carry out any activity for or have any business with the Complainant; that to the best knowledge of Complainant’s knowledge the Respondent is not currently and has never been known as AIRFRANCE or AIR FRANCE; and that no license or authorization has been granted to the Respondent to make any use or apply for registration of the disputed domain name.
In such circumstances the burden of production shifts to the Respondent to prove that it has such rights or legitimate interest in the disputed domain name. The Respondent has not filed any Response and therefore has failed to discharge the burden of production.
The Complainant has therefore satisfied the second element of the test in paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
This Panel accepts that the Complainant has demonstrated that it has a strong international reputation and that its AIR FRANCE trademark is widely known throughout the world. It is improbable that the Respondent was unaware of the Complainant and its rights when the disputed domain name was registered.
The disputed domain name <aırfrance.com> [xn--arfrance-tkb.com], when used as the address of a website, appears on the address bar and seen by the Internet user as <aırfrance.com>. This Panel finds that on the balance of probabilities the disputed domain name was chosen and registered in order to reference the Complainant’s name and trademark AIR FRANCE in order to take advantage of the Complainant’s reputation and goodwill and to mislead Internet users.
The screenshot provided by the Complainant shows that the disputed domain name resolves to a webpage with the message “403 error”. Whereas this forbidden error message allows for the possibility that the disputed domain name is being used for some concealed purpose, on the basis of the information adduced to this Panel, on the balance of probabilities the Respondent is putting the disputed domain name to a passive use.
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states that “[f[rom the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding.”
Looking at the totality of the circumstances in this case, this Panel finds that (i) the Complainant’s trademark has a high degree of distinctiveness and reputation; (ii) that the Respondent has the failed to submit a Response or to provide any evidence of actual or contemplated good faith use; (iii) that the Respondent appears to have concealed its identity; and (iv) it is implausible that the disputed domain name can be put to any good faith use.
This Panel finds that the disputed domain name has been registered and is being used in bad faith.
The Complainant has therefore satisfied the third and final element of the test in paragraph 4(a) 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 disputed domain name <aırfrance.com> [xn--arfrance-tkb.com] be transferred to the Complainant.
Date: October 25, 2019