WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Airlinen Ltd v. Deyan Dimitrov, Laundryheap, VenturePoint Ltd
Case No. D2019-2542
1. The Parties
The Complainant is Airlinen Ltd, United Kingdom, represented by Adlex Solicitors, United Kingdom.
The Respondent is Deyan Dimitrov, VenturePoint Ltd, Bulgaria and Deyan Dimitrov, Laundryheap, United Kingdom, self-represented.
2. The Domain Names and Registrar
The disputed domain names <airlinen.com> and <airlinens.com> are registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 16, 2019. On October 17, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On October 18, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 23, 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 October 24, 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 October 30, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 19, 2019. The Respondent issued two email communications to the Center on November 4, 2019. The Response was filed with the Center on November 19, 2019. The Complainant filed a supplemental filing on November 29, 2019. The Respondent filed a supplemental filing on December 1, 2019. On December 3, 2019, the decision due date was extended to December 17, 2019.
The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on November 26, 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
A. The Complainant
The Complainant is a United Kingdom private limited company incorporated on April 22, 2016. Since around the time of its incorporation, it has provided linen hire and related services to short term let properties and hotels under the name “Airlinen”. The Complainant states that it has servicing access to over 4,500 properties in London as well as additional properties in other United Kingdom cities. According to a letter from the Complainant’s accountants, its turnover has grown from GBP 44,317 in the financial year ended April 30, 2017 to GBP 1,788,369 at the corresponding year end in 2019.
The Complainant maintains a website at “www.airlinen.co.uk”, the corresponding domain name for which was registered on March 20, 2016. The Complainant states that it engages in online and offline marketing activities to promote its “Airlinen” brand including search engine optimization to raise its presence in organic search results, and the purchase of paid advertising on relevant keywords. The Complainant appears on the first page of Google search results for “short let” and “linen hire” related terms.
The Complainant is the owner of two registered trademarks for the word mark AIRLINEN. These are United Kingdom registered trademark No. 3175574 filed on July 20, 2016, and registered on October 14, 2016, in classes 9, 24, 37, 39, 40 and 43, and European Union registered trademark No. 17971980 filed on October 23, 2018, and registered on February 7, 2019, in classes 3, 12, 24, 35, 37, 39 and 43.
This disputed domain name was created on November 7, 2011. According to the Complainant’s historic WhoIs entries, it was registered to a domain name dealer and was being offered for sale on February 9, 2018. By February 6, 2019, it had been registered to a registrant organization name of “Laundryheap” with an address of “London, United Kingdom”. Upon registrar verification, the Registrar provided details indicating that it was registered to the registrant name “Deyan Dimitrov” and a registrant organization name of “Laundryheap” with a complete postal address in London, United Kingdom. The listed registrant telephone number is in the format of a United Kingdom mobile telephone number.
The Complainant’s screenshots show that as at March 6, 2019, this disputed domain name had been set to permanently redirect to “www.nestangel.com”. This website relates to a business branded “Nestangel” which appears to be in competition with the Complainant in that it offers rental of bed linen and towels for short let, serviced apartments, and hotels “to any address in London”. A separate screenshot of said website dated September 16, 2019, shows that the “Nestangel” site is made in London and states “NestAngel is a registered trademark of Laundryheap Limited”. The Complainant shows with reference to a WhoIs entry for <nestangel.com> that this domain name is registered to a registrant organization name of “VenturePoint Limited”, Plovdiv, Bulgaria. The Complainant also shows with reference to an extract from United Kingdom Companies House that the director of Laundryheap Limited is “Deyan Dimitrov” with a correspondence address in London, United Kingdom, the street and city address of which matches that of the registrant postal address for the disputed domain name <airlinen.com> as verified by the Registrar.
This disputed domain name was created on August 10, 2016. Both a historic WhoIs entry dated August 11, 2016 and the Registrar verification show that it is registered to the registrant name of “Deyan Dimitrov” and registrant organization name of “VenturePoint Limited” with a full postal address in Plovdiv, Bulgaria. The registrant telephone number provided is the same United Kingdom mobile telephone number as that verified by the Registrar in respect of the disputed domain name <airlinen.com>. A screenshot prepared by the Complainant shows that as at September 4, 2019, this disputed domain name had been set to permanently redirect to “www.nestangel.com”.
This domain name is not one of the disputed domain names in the present case but is relevant to the Parties’ contentions. It was created on August 10, 2016. The Complainant’s historic WhoIs entry shows that it was registered to VenturePoint Ltd at the same postal address in Plovdiv, Bulgaria, as provided for the disputed domain name <airlinens.com>. The Complainant’s screenshot shows that as at September 4, 2019, this domain name had also been set to permanently redirect to “www.nestangel.com”.
E. The Respondent
The Response is signed and filed by Deyan Dimitrov, described on the covering email as “Founder and CEO / Laundryheap”. The Response states that it has been provided by and on behalf of an entity named Laundryheap, Inc., a Delaware, United States of America (“United States”) corporation which provides laundry and cleaning services to customers in the United States. It also states that Laundryheap, Inc. is part of a group of companies which includes Laundryheap Limited. Further discussion on this matter will be provided in the section on consolidation of respondents below.
F. The Parties’ past history and pre-complaint correspondence
The Parties agree that they are linked to a past business relationship albeit that neither of the Parties appear to suggest that the relationship was directly between the Complainant and the Respondent here. The Complainant says that a company under common ownership with the Complainant named Easy Dry Clean Limited, trading as Ascots of London, supplied dry cleaning services to the Respondent (it does not specify to which of the Respondent entities) from around 2015. The Respondent states that said Easy Dry Clean Limited provided such services to Laundryheap Limited.
The Complainant’s representative wrote to the Respondent on March 6, 2019, regarding the disputed domain name <airlinen.com> alleging trademark infringement and passing off, and seeking removal of the website redirection, transfer of said disputed domain name, and confirmation that the Respondent will not otherwise infringe the Complainant’s rights. The Respondent replied initially on March 18, 2019, requesting some time and indicating that it was “currently working through your requests”. On April 1, 2019, the Respondent emailed the Complainant’s representative indicating that it had removed the redirect from the disputed domain name <airlinen.com> and stating that it considered the case closed. The Complainant’s representative replied on the same date that it awaited a response on the outstanding issues and followed up on June 24, 2019.
The Respondent replied substantively to the Complainant’s representative on June 29, 2019 noting the terms of its alleged supplier-customer relationship with the Complainant and referencing written and verbal agreements suggesting that there was a contractual dispute between the Parties. The Respondent added that the disputed domain name <airlinen.com> had been available to purchase on the free market for years and that the Complainant did not appear to have had an interest in it in the past.
The Respondent produces an extract of a “Whatsapp” message dated July 3, 2016, wherein a representative of the Respondent appears to have asked a representative of Easy Dry Clean Limited whether the latter offered linen rental or simply laundry services. In said exchange, the recipient replies indicating that the latter only provides laundry services.
5. Parties’ Contentions
The Panel notes that the Parties have prepared detailed submissions and counter-submissions in this case. The following is a summary, rather than a full repetition, of each case. The Panel has nevertheless reviewed and considered all contentions in full before proceeding to a Decision.
The Complainant contends that the disputed domain names are identical or confusingly similar to a trademark in which it has rights; that the Respondent has no rights or legitimate interests in the disputed domain names; and that the disputed domain names have been registered and are being used in bad faith.
The Complainant relies on its registered trademarks and on common law rights, noting that by virtue of extensive trading and marketing activities it has acquired substantial reputation and goodwill in the AIRLINEN mark, such that it is recognized by the public as distinctive of the Complainant’s business. The Complainant submits that the disputed domain name <airlinen.com> is identical to the Complainant’s mark, disregarding the domain suffix and that the disputed domain name <airlinens.com> is confusingly similar thereto, differing only by inclusion of the letter “s”.
The Complainant submits that it has never authorized the Respondent to use its mark, that the Respondent has however used the disputed domain names to redirect Internet users seeking the Complainant to the website of a direct competitor, that there is no evidence that the Respondent has been commonly known by either of the disputed domain names and that the Respondent was out for commercial gain.
The Complainant asserts that the Respondent intended to prevent the Complainant from reflecting its trademark in the disputed domain names, was aware of the Complainant and its business when it registered these, and must have known that the Complainant would have wanted to acquire the disputed domain names for itself. The Complainant adds that the Respondent has engaged in a pattern of such conduct, based upon its registration of the disputed domain names and <airlinens.co.uk>.
The Complainant asserts that the Respondent registered the disputed domain names to unfairly disrupt the Complainant by diverting business intended for it. The Complainant contends that the Respondent adopted a scheme to confuse, attract and profit from Internet users who were searching for the Complainant’s business in search engines, web browsers, or otherwise on the Internet, producing an email example from a customer of actual confusion.
The Complainant submits that the Respondent had the Complainant and its business in mind when registering and using the disputed domain names, noting that the Respondent did not deny this in pre‑complaint correspondence. The Complainant adds that the Respondent is a competitor of the Complainant, and justified registration of the disputed domain name <airlinen.com> in its email of June 29, 2019 on the basis of an alleged transgression of the Complainant in past dealings. The Complainant indicates that it is inconceivable that the Respondent registered the disputed domain names independently of the Complainant’s distinctive trademark or that the Respondent was unaware that <airlinen.co.uk> was taken and in use by the Complainant when it registered the unusual and grammatically incorrect formulation in the disputed domain name <airlinens.com>.
The Complainant submits that the Respondent’s agreement to remove the redirect in respect of the disputed domain name <airlinen.com> and unilateral declaration that the matter was closed represents an admission of bad faith on its part. With regard to the Respondent’s email of June 29, 2019, the Complainant asserts that it is evident that the Respondent registered the disputed domain name <airlinen.com> in revenge for the Complainant having entered into competition with it. The Complainant asserts that it has never had any contractual relationship with the Respondent but indicates that a company under common ownership with the Complainant, Easy Dry Clean Limited did do so, albeit that the Complainant states it is not aware of any non-compete agreement having been entered into between such entity and the Respondent, and notes that no contract or details have been provided by the Respondent. The Complainant adds that if there were a breach of contract, which it denies, the Respondent should have asserted this to such entity in the usual way, noting that any such dispute could not have justified the Respondent registering domain names which reflect the Complainant’s trademarks.
The Complainant states that the Respondent’s claim that the disputed domain name <airlinen.com> was of no value to the Complainant is implausible because the Respondent has effectively admitted that it was aware of the Complainant and the services which it offered via <airlinen.co.uk>. The Complainant adds that the Respondent must have known that <airlinen.com> would have been of interest to the Complainant and that it was because of such interest that the Respondent acquired it.
The Complainant rejects the Respondent’s suggestion that the Complainant should have registered the disputed domain name <airlinen.com> itself, adding that this is a common argument of last resort by cybersquatters and noting that the fact that the Complainant chose not to register such domain name does not justify the Respondent doing so itself. The Complainant disputes that it has no interest in providing its services in the United States and adds that such a matter is irrelevant to this dispute, noting that “.com” domain names are used ubiquitously worldwide and are not restricted to the United States, and that the Complainant itself uses <nestangel.com> to provide a London, United Kingdom focused service. The Complainant asserts that the fact that the Respondent has used such an argument underlines the weakness of its position. The Complainant concludes that the Respondent has fallen silent since its email of June 29, 2019, and removed the redirects at the disputed domain name <airlinens.com> and <airlinens.co.uk> without comment. The Complainant submits that this is a further admission by the Respondent that its previous use was illicit.
The Respondent requests that the Complaint be denied. The Respondent states that its group of companies are active in the United Kingdom, the United States, Ireland, the Netherlands, the United Arab Emirates and India. The Respondent adds that Laundryheap Limited provides a range of laundry related services including for “Airbnb” hosts, has been nominated for the United Kingdom National Business Awards 2019, and has been ranked the 18th fastest growing company in the United Kingdom by Deloitte in 2019 (providing evidence of the latter).
The Respondent explains that the Complainant is under common ownership with several other businesses and has links to common individuals. The Respondent adds that according to the Complaint and to its knowledge, the Complainant and its affiliated companies operate solely in the United Kingdom and are unknown in the United States. The Respondent notes that it has had correspondence with Easy Dry Clean Limited via individuals named Sean Mohit and Nima Ghodrati, indicating its understanding that the latter is director and the former the main decision maker in the company.
The Respondent notes the date on which the Complainant claims to have commenced its services, commenting that the Respondent has provided a linen rental service for “Airbnb” hosts in the United Kingdom since December 2014. The Respondent says that, on July 3, 2016, it was trying to identify a suitable name for its “Airbnb” linen service in the United States and considered registering the disputed domain name <airlinens.com> due both to its descriptiveness and the fact that it is a commonly used term for such a service. The Respondent explains that at this point it sought to verify with the Complainant that its services were not competitive with those of the Respondent and contacted the Complainant’s Sean Mohit by “Whatsapp message” in order to check this, adding that Mr. Mohit replied that the Complainant did not provide a linen rental service. The Respondent notes that the Complainant registered its trademark some 17 days later and asserts that it was unaware of this at that time.
The Respondent submits that as a result of the communication between it and Mr. Mohit, it proceeded to register the disputed domain name <airlinens.com>, along with <airlinens.co.uk>, on August 10, 2016, adding that these were to be used for the linen rental service which Laundryheap Inc. offers in the United States. The Respondent asserts that it relied on such communication and submits that the Complainant acted in bad faith in not advising of the competitive nature of its services, adding that only the Complainant could truly have known at that point that it was providing such services and that it was reasonable for the Respondent to accept and rely on this when registering said domains and building a company.
The Respondent explains the background to the “Airbnb” platform and submits that service providers have begun to use “Air” or “Bnb” coupled with a word describing the service, including “Airsorted”, “Airpeaceofmind” and “Airdna”, adding that an “Airbnb” bed linen service subsequently became commonly described as “air linen”. The Respondent accepts the existence of the Complainant’s trademarks but denies that these grant exclusivity to other markets nor prevent fair use in a market such as the United States, where the Respondent asserts that it is using the disputed domain names and in which territory it notes that the Complainant has not registered its trademark. The Respondent contends that “there is a strong case of either passing off or being too descriptive for the trademark on which this case is based to, [sic] thus creating a confusion on the market that [the Complainant] is the only Airbnb‑linen provider for “air linen”.
The Respondent asserts that it has a legitimate interest in the disputed domain names for the provision of a service to “Airbnb” users and others on the United States market, and due to the fact that the term in each of the disputed domain names is descriptive. The Respondent argues that it uses a separate domain name in each country and uses <laundryheap.com> exclusively for the United States and <laundryheap.co.uk> for the United Kingdom, arguing that the former is commonly used as a United States-specific domain for a company which already has domains in other countries.
The Respondent denies that it has blocked the Complainant from using its trademark in the disputed domain name <airlinen.com>, adding that the Complainant had no interest in registering this until the Respondent used it for a market that is out of scope for the Complainant’s business and trademark, adding that it was available on the market both before and after the Complainant registered its mark. The Respondent argues that the Complainant is seeking to block the Respondent from using such domain lawfully in a new territory.
The Respondent denies that the disputed domain name <airlinens.com> and the corresponding domain name <airlinens.co.uk> are unusual or grammatically incorrect, producing a dictionary entry indicating that “linens” is an appropriate plural form of “linen” and arguing that it is not reasonable to expect it to have identified the existence of the Complainant’s “.uk” domain name before it purchased a “.com”.
The Respondent submits that the disputed domain names were created in good faith by Laundryheap Inc., as a short name containing words which users would associate with the relevant market in the United States. The Respondent adds that the words “air linen”, “air-linen”, and “airlinen” have been used interchangeably to describe the relevant service and that, in order to be sure there could not be any competing service, it had contacted Mr. Mohit of the Complainant. The Respondent says that it believed this was the right thing to do as it had been aware of the Complainant’s companies and wished to verify that its services were still not competing “before actively registering an industry common name”, which it proceeded to do in good faith. The Respondent notes that the date on which the Complainant claims to have commenced business pre-dates the “Whatsapp” response from Mr. Mohit and suggests that this indicates bad faith on the part of the Complainant.
The Respondent acknowledges the pointing of the disputed domain names to a United Kingdom-focused website, asserting that this was for a limited period of time and as part of a common practice that a domain name will point to an already existing market while a service is being established in a new market and while the website is being configured for such new market. The Respondent denies that it actively tried to target the United Kingdom market or to confuse, attract, or profit from Internet users, adding that no advertising, whether on social media or otherwise, had been enabled in such market or the European Union, and that there are no other plans to use the disputed domain names in such markets. The Respondent notes that the redirects have been removed to avoid issues while the online presence for the United States market is set up, denying that this amounts to any admission of bad faith and asserting that it is merely limiting legal exposure and costs.
The Respondent denies that it has engaged in a pattern of conduct of registering domain names corresponding to trademarks, adding that it is common practice to acquire plural and singular forms of domain names. The Respondent denies that it intended to disrupt the business of a competitor, arguing that it could not have known this, with reference to its “Whatsapp” message to Mr. Mohit. The Respondent indicates that if Mr. Mohit had confirmed that the Complainant’s services were competing or had declined to answer, the Respondent might not have registered the disputed domain names and might have considered another name for its United States service. The Respondent asserts that it did the right thing by actively seeking to establish if there could and would be any conflict of interest prior to the registration of the disputed domain names, submitting that the Complainant acted in bad faith by “denying the presence of a competitive service” and later seeking to benefit from the confusion which it had caused.
C. Complainant’s Supplemental Filing
The Complainant notes that the correct Respondents are the registrants of the disputed domain names as named in the amended Complaint, pointing out that Laundryheap, Inc. was incorporated only on June 11, 2018, being two years after the registration of <airlinens.com>, the registrant details for which make no reference to “Laundryheap” and appear to refer to a Bulgarian entity. The Complainant also submits that “Laundryheap” in the registrant details for <airlinen.com> refers to the United Kingdom company Laundryheap Limited, adding that there is no evidence that Laundryheap, Inc. has ever used the corresponding address. The Complainant notes that the Respondent has not clarified the date of its acquisition of <airlinen.com> despite the start of the potential acquisition period predating its incorporation date. The Complainant requests that the Response should be rejected as not filed on behalf of either of the correct Respondent entities.
The Complainant denies that “air linen” is a commonly used generic term for “Airbnb” linen services. The Complainant notes that Laundryheap, Inc. cannot have considered registering the disputed domain name <airlinens.com> on July 3, 2016, as it was not incorporated until 2018. The Complainant asserts that there is no evidence of any relevant operations in the United States by the Respondent companies in 2016, nor any evidence that the disputed domain names have been used in relation to the United States.
The Complainant provides evidence that as at April 16, 2019, the disputed domain name <airlinens.com> was redirecting to a United Kingdom focused website three years after registration. The Complainant notes that the Respondent has not explained why <airlinens.co.uk> was registered on the same date as the disputed domain name <airlinens.com> if the latter was focused on the United States business. The Complainant suggests that the United States connection was conceived as a defensive move by the Respondent after the Complainant asserted its claim.
With regard to the “WhatsApp” enquiry, the Complainant notes that the Respondent admits that it was aware of the Complainant on July 3, 2016. The Complainant states that the Respondent’s checking of the Complainant’s service before registering the disputed domain name <airlinens.com> shows that it knew that the Complainant had prior rights in the name concerned, particularly as it says it might have decided not to proceed depending on the Complainant’s reply, and contradicts the Respondent’s assertion that “Air Linen” is a generic term registered for a geographically distinct business in the United States.
The Complainant states that it is implausible that the Respondent was unaware of the Complainant’s business given that this is in direct competition with the Respondent and is its only direct competitor. The Complainant notes that even if the Respondent (a) had known about the Complainant’s business but not what it did, (b) needed to ask Mr. Mohit what it did, and (c) believed the Complainant provided only linen cleaning, the Respondent would hardly have been justified in registering the disputed domain names for what would have been a very similar linen-related service. The Complainant adds that Mr. Mohit’s answer was correct because he assumed the inquiry referred to Easy Dry Clean Ltd, which only offered linen cleaning services and was made in the context of that ongoing relationship, noting that the “WhatsApp” enquiry is addressed to “Sean Easydryclean”.
The Complainant contends that the Respondent is wrong to claim that the Complainant’s operations only started after the disputed domain name <airlinens.com> was registered as it commenced trading as “Air Linen” in April 2016 and the Respondent was aware of this by July 3, 2016. The Complainant likewise suggests that the Respondent is wrong in stating that it has operated “www.laundryheap.com” for the United States exclusively and local domain names for other countries, noting that the website concerned has a drop down list referring to “UK, Ireland, Netherlands, UAE”.
D. Respondent’s Supplemental Filing
The Respondent states that it objects to the Complainant’s reasoning regarding Laundryheap Inc. not being the proper Respondent, explaining that it had informed both the Complainant and the Center of this after receiving the Complaint and asserting that it is unrealistic to suggest that a fast-growing company, the 18th fastest growing technology company in the United Kingdom, needs to create a local legal entity before registering a domain name, particularly where the name is short and descriptive, and so not easy to obtain. The Respondent suggests that even if the Panel decides that Laundryheap Limited is the correct Respondent, the Response should still be considered because it was provided within the same group of companies under the same ownership and control and that there are sufficient grounds to warrant its receipt.
The Respondent adds that one of its companies is based in Bulgaria because this is a known information technology hub for western Europe. The Respondent adds that Laundryheap Inc. receives correspondence at Laundryheap Limited’s address as it is a subsidiary company and this is not illogical, noting that the disputed domain name <airlinen.com> was registered to “Laundryheap”, confirming that the Respondent did not intend Laundryheap Limited to be the registrant but the local limited company which was not yet incorporated and whose name was not known.
The Respondent denies that the Complainant’s name is unique and reserved to it globally, noting that there have been at least two United Kingdom companies (now dissolved), named Air Linen Laundry & Hire Services Limited and Air Linen Company Limited respectively. The Respondent suggests that the Complainant does not have any grounds to challenge the operation of another company under such name.
The Respondent denies that the Complainant has shown that the Respondent has been redirecting traffic via the disputed domain names for three years, noting that had this been the case, the Complainant would have become aware of this much sooner. The Respondent asserts that the disputed domain names were redirecting for a short period of time during testing, probably from about the second half of February 2019 to about the second half of March 2019. The Respondent denies having redirected the disputed domain names immediately after registration/acquisition.
The Respondent asserts that it was aware of the services of the companies in common ownership with the Complainant but was not aware of the Airlinen business itself. The Respondent explains that it contacted Mr. Mohit on July 3, 2016, because the Complainant’s Mr. Ghodrati had contacted the Respondent’s Mr. Dimitrov on June 29, 2016, to request delivery of a van-load of linen (messages sent via “WhatsApp” provided) and this triggered the Respondent to enquire about the competitiveness of the Complainant’s service with the person he considered to be the main decision maker in the Complainant. The Respondent explains that such competition would have contravened Laundryheap’s terms of service. The Respondent notes that the Parties’ companies continued to work together for a year and a half after this point, during which time the Respondent relied upon Mr. Mohit’s confirmation. The Respondent adds that <airlinens.co.uk> was also registered because the Respondent’s initial plan was to use the “Air Linen” or “Air Linens” brands globally. Having become aware of the Complainant’s trademark, the Respondent notes that it retained the Nestangel brand for United Kingdom operations only.
The Respondent states that its reassurance as to the competitiveness of the Parties’ services and the registration of the disputed domain name <airlinens.com> are two unlinked events which were only linked once the Respondent realized the nature of the Complainant’s rights and decided to use said domain name for its operations in the United States and other markets which are not limited by the Complainant’s trademark. The Respondent argues that if the Complainant had not acted in bad faith, the Respondent would have known of the Complainant’s interest in the service, the Respondent would have limited the Complainant’s access to the Respondent’s operations, the Respondent would have become aware of the Complainant’s name and trademark and the Respondent would not have decided to use the same name and invested in the disputed domain names.
The Respondent notes that the Complainant refers to “Air Linen” as opposed to “Airlinen Limited”, indicating that the Complainant accepts that the term is descriptive. With regard to the Respondent’s ability to check the Complainant’s website, the Respondent submits that there is no evidence that said website was online in June 2016, noting that the Google analytics results provided by the Complainant show no traffic prior to May 2017. The Respondent adds that it has not been able to find the Complainant’s website on the Internet Archive database for the corresponding dates.
The Respondent refers to the fact that it recorded Mr. Mohit’s contact details on “What’s App” as “Sean Easydryclean”, indicating that this is of no significance, adding that the fact that the Complainant was different from Easy Dry Clean Ltd does not limit Mr. Mohit’s knowledge. The Respondent accepts as a matter of fact that the Complainant was incorporated before the disputed domain name <airlinens.com> was registered but not that the Respondent was aware of this or of the Complainant’s trademark. The Respondent notes that it does not claim that it has operated “www.laundryheap.com” exclusively for the United States but rather that it has used a “.com” domain as a catch-all until such domain is required for United States operations, adding that “www.laundryheap.com” now only serves the United States market.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is 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 name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Preliminary issue: Respondent identity / Consolidation of Respondents
The Panel requires as a preliminary matter to determine the Respondent’s identity in respect of each of the disputed domain names. This is important for two principal reasons. First, the Response in this case has been filed on behalf of a United States entity named Laundryheap, Inc., which does not feature on the WhoIs record for either of the disputed domain names. The Panel requires to determine whether this Response should be accepted, which is opposed by the Complainant. Secondly, the Complainant seeks consolidation of its complaints in respect of the two disputed domain names, which is opposed by the Respondent.
The UDRP Rules give the Panel power to conduct proceedings in such manner as it considers appropriate, in accordance with the Rules and the Policy, and in the Panel’s opinion, this power allows it to determine the correct respondent in these proceedings and, for example, to refuse to consider the Response if it appears to emanate from a third party. The UDRP Rules define the respondent as “the holder of a domain name registration against which a complaint is initiated”. As noted in the factual background section, there are two different holders in the case of the disputed domain names, albeit that there are a number of common features in terms of registrant names and contact data. Neither of the said holders is listed (either in registrant name or registrant organization field) as the alleged Respondent, Laundryheap, Inc., nor do the WhoIs records list any address or contact details relating to the United States, where such company is incorporated. Consequently, in the Panel’s opinion, Laundryheap, Inc. is not the holder of either of the disputed domain names.
The author of the Response nevertheless argues that the disputed domain names were registered/acquired on behalf of Laundryheap, Inc. for its business in the United States. The Response appears to suggest that this company is the actual holder of the disputed domain name <airlinen.com> because the registrant organization is listed as “Laundryheap”, and, by extension, that the said company also has some unspecified beneficial interest in the disputed domain name <airlinens.com>.
Limited submissions have been provided to the Panel relating to Laundryheap, Inc. other than an assertion that it forms part of a corporate group along with Laundryheap Limited of the United Kingdom and the Bulgarian entity noted above. Laundryheap Limited is said to be the sole owner of Laundryheap, Inc. No independent evidence has been supplied regarding the directors and shareholders of Laundryheap, Inc., or of any actual business activities undertaken by it in the United States. The Complainant has however provided the Panel with the relevant basic information available online from the State of Delaware, United States, which shows that an entity by that name does exist (albeit that this is not a statement of good standing) and quotes its incorporation date, being June 11, 2018.
There is no evidence before the Panel that Laundryheap, Inc. is the beneficial owner of the disputed domain name <airlinens.com>, which was created almost two years before the apparent incorporation of that company. According to Registrar verification, the holder is a Bulgarian organization, albeit that no independent evidence has been placed before the Panel regarding the existence of the latter entity. There is no evidence before the Panel that the said disputed domain name has been used in connection with any actual business or trading in the United States or that there are demonstrable preparations to do so, as opposed to mere assertions on the part of the author of the Response.
The Panel also finds on the balance of probabilities that Laundryheap, Inc. is not the actual or intended holder of the disputed domain name <airlinen.com>. As with the other disputed domain name, there is no evidence that this disputed domain name has ever been used in connection with any business in the United States, nor any evidence, beyond mere assertions, of preparations to use it in this manner. The corresponding WhoIs records show that this disputed domain name was acquired by Deyan Dimitrov / Laundryheap (United Kingdom address supplied) at some indeterminate point between February 9, 2018 and February 6, 2019. Despite the acquisition date being firmly placed in issue by the Complainant in its supplemental filing, the Respondent has notably failed to provide any further details and therefore the Panel does not know whether this disputed domain name was acquired after Laundryheap, Inc. had come into existence. The Respondent claims that Laundryheap, Inc. uses the London, United Kingdom, contact address specified on the WhoIs record for the disputed domain name <airlinen.com>. It has provided no independent evidence of this and the Panel considers that it would be unwise to rely upon such a bare assertion, especially in the absence of greater detail as to the operations of the alleged corporate group or the date of acquisition of <airlinen.com>.
Accordingly, the Panel turns to the question of whether the Response should be received and considered in this proceeding, bearing in mind that it appears to emanate from a third party. The Panel has reached the conclusion that the Response should nevertheless be brought into consideration. Although it appears to have been issued on behalf of Laundryheap, Inc., it has been signed by Deyan Dimitrov, described on the covering email as “Founder & CEO / Laundryheap” with the London, United Kingdom contact address discussed above. Mr. Dimitrov is listed on the WhoIs records for both of the disputed domain names and, based on the totality of the correspondence issued on behalf of the disputed domain names’ holders, appears to be the controlling mind behind any or all of the various corporate or quasi-corporate entities featuring on the Respondent side of the present dispute. In these circumstances, the Panel is of the opinion that it would be unfairly prejudicial to the Respondent simply to reject the Response out of hand because it appears to have been filed on behalf of an alleged group company which has no clear connection to the registration/acquisition of the disputed domain names.
Turning to the Complainant’s request to consolidate its complaints against the two separate holders of the disputed domain names, the Panel notes that section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) provides inter alia as follows:
“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.”
The section goes on to note that panels have considered a range of factors, typically in some combination, such as for example similarities in registrant identities including pseudonyms, registrants’ contact information, the content or layout of websites corresponding to the disputed domain names, and any evidence of respondent affiliation with respect to the ability to control the disputed domain names.
In the present case, the Panel accepts the Complainant’s arguments that there are strong similarities and links in registrant identities between the disputed domain names. The Panel accepts the Complainant’s evidence showing that both disputed domain names were pointed to the same website content and its assessment, based on the correspondence between the Parties, that they are subject to common control. In addition to each of the disputed domain names featuring the same registrant name and United Kingdom mobile telephone number on the WhoIs record, both were initially redirected to the same online location when first identified by the Complainant, namely the website for a London, United Kingdom business. The corresponding domain name for such website, <nestangel.com>, is likewise registered to the Bulgarian entity noted in the factual background, with the same United Kingdom mobile telephone number as for the disputed domain names. The website itself declares that it serves “any address in London”, that it was made in London, and that “NestAngel is a registered trademark of Laundryheap Limited […]”
The Respondent’s counter-arguments on this topic are found in its email to the Center dated November 4, 2019, signed by “Deyan”, presumably Deyan Dimitrov. Mr. Dimitrov argues that consolidation should not be permitted due to reasons of practicality. He further states that it is not reasonable for “both respondents” to work on the case together, on the basis that they are different private companies in two different jurisdictions and time zones, and using two languages. The Respondent argues that it is difficult to determine from the Complaint as to which of the disputed domain names are being referred to at various points, adding that the history and “reasoning” behind said disputed domain names is different, albeit without elaborating further. The Respondent asserts that combining the cases causes confusion as it would be factually wrong for some of the Complainant’s arguments to be applied to both of the disputed domain names or both of the registrants. The Respondent suggests that this may cause confusion to the Panel. The Respondent adds that if either of the registrants seeks to challenge the Decision in their court of local jurisdiction, the presence of extraneous facts and multiple unrelated domain names will lead to confusion.
The Complainant has set out at some length the commonality between registrant identities, contact information, website location and the apparent ability of Mr. Dimitrov, as the only Respondent side correspondent, to control the disputed domain names in the present case. The Panel agrees with the Complainant that the disputed domain names appear to be under common control. This is the case regardless of the actual corporate structure which is alleged to surround the Respondent’s various businesses and on which the Panel has been provided with scant information. To the extent that there is any connection to individual companies, as asserted by Mr. Dimitrov in the email of November 4, 2019, the Respondent has failed to explain the nature of the corporate structure to the Panel’s satisfaction, or provide any evidence which might contradict the obvious inference that the disputed domain names are under the ultimate control of a single person using a single United Kingdom mobile telephone number, namely Deyan Dimitrov.
With regard to the Respondent’s assertion that it would not be fair and equitable to consolidate the complaints relating to the disputed domain names, the Respondent fails to offer any good reason why both disputes should not be heard under the same proceeding given that the same factual circumstances appear to apply to both, the same website content has been displayed in respect of both and there appears to be a single individual behind both who has filed the Response and who engaged in all pre-complaint correspondence with the Complainant and the Center notwithstanding the mention of several different corporate entities.
The Respondent asserts that the registrants will require to collaborate on a Response and will be working in different languages. The Panel finds this difficult to accept, given that, at least on the face of the WhoIs records, Mr. Dimitrov represents all entities involved and is clearly proficient in English. There is no evidence before the Panel as to why Mr. Dimitrov would require to refer any matters to any person or entity in a different timezone. It is true that the WhoIs for the disputed domain name <airlinens.com> apparently features a Bulgarian entity but its contact telephone number is the same United Kingdom mobile telephone number applying to both of the disputed domain names. Beyond mere assertion, there is no evidence of the existence of such Bulgarian entity before the Panel. No explanation has been tendered as to what matters require its participation which cannot be adequately addressed by Mr. Dimitrov and are not already covered in the detailed Response which he has filed.
The Respondent’s argument that consolidation should be refused because it may require to challenge this Decision in the home forum of one or other of the limited companies is also not accepted by the Panel. Any such challenge will be determined according to national law notwithstanding the terms of the Decision. The Panel cannot identify any good reason as to why any prejudice would be suffered by the Respondent on this basis.
In conclusion, the Panel considers that there are more commonalities in the facts and circumstances relating to the disputed domain names than there are differences. The Panel is not persuaded that it should refuse consolidation purely because the Respondent alleges that different group companies connected to such domain names may have different interests when it has failed to specify what these are and/or has been unable to convince the Panel as to how the individual registrants would be prejudiced. Given the apparent common involvement by Mr. Dimitrov in all the named entities and his apparent common control of the disputed domain names, the Panel considers that it is fair and equitable to both of the Parties to consolidate the disputes regarding both disputed domain names. The Respondent has received a fair opportunity to file a detailed Response regarding both of the disputed domain names.
B. Preliminary issue: Parties’ supplemental filings
Both of the Parties have submitted supplemental filings in the present case for the Panel’s consideration. However, there is no provision in the Policy or Rules which automatically entitles a party to submit such a filing. According to its sole discretion, the Panel can decide whether or not to admit such submissions in accordance with the general powers set out at paragraph 10 of the Rules, subject to the proviso in paragraph 10(b) of the Rules that each party must be given a fair opportunity to present its case and that the parties are treated with equality.
The Panel is content to accept both of the Parties’ supplemental filings here. Although each has made a substantial further submission, both Parties have endeavored to restrict these to matters newly raised or commented upon by the other. The Panel is satisfied that the Complainant could not fully have anticipated the nature of the Respondent’s case at the point when it filed the Complaint and should be allowed the opportunity to comment on this. By the same token, the Panel considers that it is reasonable to allow the Respondent to reply to such comments.
C. Preliminary issue: Effect of Court Proceedings
Neither of the Parties has notified the Panel and the Center that it has commenced any separate legal proceeding regarding the disputed domain names before or during the pendency of this administrative proceeding. However, the Respondent has stated that it is currently preparing a case for trademark cancellation to be submitted to the European Union Intellectual Property Office. The Respondent states that it plans to make such application “shortly after the Response is submitted or during the review done by the Panel”.
In terms of paragraph 18(a) of the Rules, the Panel has discretion to suspend, terminate or continue a proceeding under the Policy where a domain name dispute that is the subject of the Complaint is also the subject of other pending legal proceedings. In the present case, the Respondent has intimated that it is proposing to challenge one of the Complainant’s registered trademarks rather than to make either or both of the disputed domain names themselves the subject of any legal proceedings. In these circumstances, the Panel considers that paragraph 18(a) of the Rules is not engaged and will proceed to a Decision in this case.
D. Identical or Confusingly Similar
The Complainant’s registered trademark AIRLINEN is identical to the second level of the disputed domain name <airlinen.com>. It is almost identical to the second level of the disputed domain name <airlinens.com>, other than the addition of the letter “s”, which does not prevent the Complainant’s mark from being recognizable within this disputed domain name. The generic Top-Level Domain (“gTLD”), in the case of each disputed domain name, “.com”, does not require to be taken into consideration in the determination of identity or confusing similarity (see section 1.11 of the WIPO Overview 3.0).
The Response puts forward a number of contentions on this topic which are not relevant to the first element assessment, including for example an assertion that the Complainant’s trademark is descriptive of an “Airbnb” focused service and that the Respondent is making fair use of the same descriptive term, that the Complainant does not have a registered trademark in the United States (on this topic, see section 1.1.2 of the WIPO Overview 3.0), and that the Respondent intends to challenge the Complainant’s European Union registered trademark. For the purposes of this administrative proceeding, the Panel notes that said mark is ex facie valid and meets the first element test, and that, in any event, the Respondent does not indicate that it proposes to challenge the Complainant’s United Kingdom registered trademark, which is also ex facie valid.
In these circumstances, the Panel finds that the disputed domain names are confusingly similar to the Complainant’s AIRLINEN trademark and accordingly that the first element under the Policy has been established.
E. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists several ways in which the Respondent may demonstrate rights or legitimate interests in the disputed domain names:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.
The consensus of previous decisions under the Policy is that a complainant may establish this element by making out a prima facie case, not rebutted by the respondent, that the respondent has no rights or legitimate interests in the domain name concerned. In the present case, the Complainant points out that the Respondent was not authorized to use its AIRLINEN mark, that the disputed domain names have been used to redirect Internet users to the website of a direct competitor for commercial gain, and that there is no evidence that the Respondent has been commonly known by either of the disputed domain names. The Panel finds that these averments are sufficient to establish the requisite prima facie case. In these circumstances, the Panel turns to the Respondent to determine whether its case is sufficient to rebut such prima facie case.
Although both of the Parties’ submissions are extensive, the core of the Respondent’s case can be expressed in relatively narrow terms. In the Response, the Respondent says that in July 2016 it was looking to identify a domain name for its United States business, which was yet to be founded. It decided upon an “industry common name” of “airlinens” and, before proceeding to register this in the “.com” space, decided to contact the Complainant to determine whether there would be any conflict. The Respondent says that a person behind the Complainant effectively responded that the Parties were not in competition and, on the strength of this, the Respondent proceeded to register the disputed domain name <airlinens.com> and the domain name <airlinens.co.uk>. Presumably, the Respondent then acquired the disputed domain name <airlinen.com> at a later stage for the same purpose, although it does not specify this. In particular, the Panel is unimpressed by the Respondent’s failure to provide information surrounding the acquisition of this disputed domain name, particularly the date and the acquiring entity or person, when it is evidently capable of providing fulsome submissions in other respects. The Respondent notes in its supplemental filing that the disputed domain names were pointed to “www.nestangel.com” purely for testing pending the launch of a United States focused offering.
The Respondent’s case raises one fundamental question, namely, are the terms “air linens” or “air linen” an “industry common name”? In other words, are these terms wholly descriptive of the service which the Respondent provides? If so, is it possible that the Respondent may have identified the name in the disputed domain names independently of the Complainant and its mark and that it then prepared to use the disputed domain names in connection with a bona fide offering of goods and services? On the other hand, is it more likely that the Respondent’s explanation as to its selection of the disputed domain names is merely pretextual, and that it selected the disputed domain names because they correspond to the Complainant’s trademark? Given that this is a central pillar of the Respondent’s case, it can be appreciated that the question of the Respondent’s rights and legitimate interests in this matter is closely linked to the question of registration and use in bad faith. If the Respondent registered/acquired the disputed domain names in good faith, in order to make fair use of a descriptive term, then that would point in the direction of a finding that it has corresponding rights and legitimate interests therein.
On the face of it, however, the compound word created from “Air” and “Linen” is not an obvious or natural combination, and accordingly it appears to the Panel to be a reasonably distinctive term. It does not describe a service, as such. It appears to have been registered by the Complainant as a trademark in both the United Kingdom and European Union without opposition. The Respondent’s argument in favor of descriptiveness consists of largely unsupported assertions surrounding the recent success of the “Airbnb” business, suggesting that it has become commonplace to use the term “Air” coupled with names denoting goods or services in order to suggest a business which assists “Airbnb” operators. However, the only substantive evidence produced by the Respondent in support of these key assertions is an entry apparently relating to two United Kingdom limited companies, both now dissolved, which, at some unknown point in the past, used the term “Air Linen” in their names. No dates of incorporation or dates of dissolution are supplied and, taken at its highest, this is simply evidence that at one time or another two companies were incorporated which feature similar names to the Complainant’s mark. There is no indication that these companies ever traded, and if so, how they traded, why they chose the name concerned, or indeed why and when they were dissolved. In short, the Respondent’s limited evidence is insufficient for the Panel to find that the term is a common descriptive phrase.
If there is no evidence that the Respondent selected the name for the above reason, are there facts or circumstances evident from the record which might provide an alternative explanation? When the Respondent’s submissions are scrutinized more closely, a picture begins to emerge. Importantly, there are curious aspects to the Respondent’s case which suggest that its various explanations may be pretextual. For example, the Panel would have expected a party selecting an allegedly descriptive name for its business to assert this as soon as it heard from the holder of any corresponding trademark. On the contrary, however, the Respondent does not mention this in its substantive reply to the Complainant dated June 29, 2019. Instead, the Respondent focuses on an alleged contractual dispute between the Parties regarding non-compete arrangements which must be, as the Complainant rightly points out, irrelevant to the issue of its adoption of an identical name to a registered trademark. This suggests to the Panel that the Respondent’s registration of the disputed domain name <airlinens.com>, along with the domain name <airlinens.co.uk> are more likely than not to be linked to the Respondent having identified that those behind its former supplier had set up a business in competition with it.
The explanation tendered in the Response, including that surrounding the Respondent’s prior contact with those behind the Complainant before it registered the disputed domain name <airlinens.com> raises many more questions than it answers. If the Respondent was seeking to register a wholly descriptive name for its business in July 2016, why would it consider that there was any need or reason to contact those behind the Complainant before doing so? Why would it contact the Complainant’s business in particular, given that on its own account there may be many businesses seeking to use the “Air” plus service name combination to support “Airbnb” related activities and could a conflict not therefore have arisen quite independently of any relationship with those behind the Complainant? Why in any event would the Respondent say that it was prepared to rely upon the Complainant’s answer regarding alleged competition when this is wholly independent of any names selected by either business? If the Respondent did not already know what name the Complainant was trading under, why would it be concerned about possible conflicts in any case?
Why did the Respondent only ask in the “What’s App” message whether the Complainant’s related company was engaged in “linens rental” rather than mentioning “Air Linen” if this is a widely used descriptive term in the industry? Why, if the Complainant had replied to the “What’s App” message indicating that it was in competition with the Respondent would this have caused the Respondent not to select the disputed domain name, as the Respondent asserts? If the Respondent was interested in commencing business in the United States, and the Complainant’s businesses were currently focused on the United Kingdom, why would the Respondent be concerned with whether or not the Complainant was in competition with it in the latter country? Equally, why would the Respondent seek to register the United Kingdom variant of the disputed domain name <airlinens.com> at the same time?
Many if not all of the above issues were raised in the Complainant’s supplemental filing. Further concerns arise from the Respondent’s replies to these in its own supplemental filing, which are inconsistent with the case put forward in the Response in certain material respects. For example, however implausible it might appear to be, the case in the Response is that the Respondent sought to make contact with those behind the Complainant purely because it was in the process of selecting a domain name for its proposed United States business, which was not actively targeting the United Kingdom market. Its alternative explanation in the supplemental filing is that it made contact due to an unusual business request which it had received at an earlier date, which suggested that the Complainant might be in competition with it. How this circumstance could be said to interact with the registration or acquisition process of the disputed domain names is not made clear and the Panel cannot see any logic in the Respondent’s original or revised case on this topic, nor is the revision entirely consistent with the original explanation.
Furthermore, while the case in the Response is that in registering the disputed domain names the Respondent was exclusively focused on its alleged ambitions in the United States, in the supplemental filing, when faced with the contemporaneous registration of <airlinens.co.uk>, the Respondent again revises its position to assert that it was looking for a global name for its business and, for this reason, also registered the United Kingdom country code variant. In short, the sense that the Panel has taken from the Respondent’s supplemental filing is that, when faced with an apparent inconsistency in its case, the Respondent simply revises its explanation in order to bring such inconsistency into alignment with its version of events as best it can. To the Panel’s mind, on the balance of probabilities, this is the hallmark of a pretextual explanation.
When the above inconsistencies and implausibility are coupled with the fact that, upon discovery by the Complainant, it was evident that the disputed domain names had been set to permanently redirect to “www.nestangel.com”, a United Kingdom business in competition with the Complainant, the more probable reason for the Respondent’s conduct is made plain. The Respondent was discovered to have diverted Internet traffic relating to the Complainant’s AIRLINEN trademark on a 301 permanent redirect to its own United Kingdom based business. When challenged on this, the Respondent asserts that it was merely engaged upon testing the disputed domain names for its United States business, noting that such testing took place probably from about the second half of February 2019 to about the second half of March 2019. The Panel accepts the Respondent’s case that the record is limited as to the length of time that the 301 permanent redirect was in place on the disputed domain name <airlinen.com>. However, the Respondent’s comment fails to address the fact that the Complainant’s evidence clearly shows that the disputed domain name <airlinens.com>, and the domain name <airlinens.co.uk>, were both still on 301 permanent redirect to “www.nestangel.com” as at September 4, 2019, this being entirely inconsistent with the alleged testing period. Of additional importance is the fact that the Respondent has provided no evidence of any demonstrable preparations to commence business under the name “Air Linen” in the United States.
The Respondent argues that it was reasonable to forward the traffic from the disputed domain names to an existing website while preparing another website targeted to a different country. On the facts of this particular case, and in the context of the Respondent’s inconsistent explanations, the Panel does not agree. The Panel considers that it is more likely that the Respondent was seeking to obtain commercial benefit for its London, United Kingdom only website, arising from confusion with the Complainant’s AIRLINEN mark, than that it was merely engaged on temporary testing for its United States venture.
In conclusion, the Respondent’s case on alleged fair use of a descriptive term is unsupported by the evidence, and the permanent redirects placed on the disputed domain names cannot be described as use or demonstrable preparations to use the disputed domain names in connection with a bona fide offering of goods or services. There is no other evidence of such demonstrable preparations before the Panel. In all of the above circumstances, the Panel is not persuaded that the Respondent has rebutted the Complainant’s prima facie case that it has no rights or legitimate interests in the disputed domain names and accordingly finds that the second element under the Policy has been established.
F. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides four, non-exclusive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location”.
Given that the issue of the Respondent’s rights and legitimate interests and the question of registration and use in bad faith are closely related in this matter, it should be noted that the case largely turns on whether the Respondent’s explanation as to how it came to register/acquire and use the disputed domain names holds water, which in the Panel’s opinion it does not. The Panel has considered and discussed this in the preceding section, noting in particular the outstanding questions and inconsistencies arising. These firmly point in the direction of registration and use in bad faith. Furthermore, given the use to which the disputed domain names have been put to forward traffic to a business in competition with the Complainant on a permanent redirect, the Panel considers that the facts of this case place it squarely within the ambit of paragraph 4(b)(iv) of the Policy and thus that registration and use in bad faith is also made out on that basis.
The Panel adds for completeness that it accepts the Complainant’s case, on the balance of probabilities, that the Respondent was aware of the Complainant and its business when it registered/acquired the disputed domain names. In the words of the panel in Emmanuel Vincent Seal trading as Complete Sports Betting v. Ron Basset, WIPO Case No. D2002-1058, this can be determined by considering “the relationship of the parties, their previous dealings and any knowledge that the Respondent may have of the Complainant’s services”. Here, both of the Parties accept that, via various entities, they have a prior business relationship. They are in very similar businesses and can be presumed to be aware of each other’s activities and services, even if, as the Respondent points out, there is no evidence before the Panel conclusively showing that the Complainant’s website was already online in June 2016. The Respondent’s alternative explanation that although it knew of the other businesses linked to the Complainant, and began to have suspicions no later than June 29, 2016, that the Complainant may have commenced business in competition, it nevertheless remained unaware of the Complainant itself, does not stand up to scrutiny. This is particularly so given that, as noted by the Complainant and accepted by the Panel, the Respondent’s pre‑complaint correspondence itself suggests such prior knowledge, and likewise when the inconsistencies in and implausibility of the Respondent’s alternative explanation discussed in the preceding section are factored into the analysis.
In all of these circumstances, the Panel finds that the disputed domain names have been registered and are being used in bad faith and therefore that 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 <airlinen.com> and <airlinens.com> be transferred to the Complainant.
Andrew D. S. Lothian
Date: December 17, 2019