WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Tiger Airways Holding Limited v. Nguyen Cuong

Case No. DWS2015-0001

1. The Parties

The Complainant is Tiger Airways Holding Limited of Singapore, represented by Amica Law LLC, Singapore.

The Respondent is Nguyen Cuong of Ho Chi Minh, Viet Nam.

2. The Domain Name and Registrar

The disputed domain name <tigerair.ws> is registered with GoDaddy.com, LLC (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 14, 2015. On May 14, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 16, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 19, 2015, 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 May 22, 2015.

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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 26, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 15, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 16, 2015.

The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on June 29, 2015. 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, Tiger Airways Holdings Limited, is a private limited company incorporated under the laws of the Republic of Singapore. It is the parent company of Tiger Airways Singapore Pte. Ltd (formerly known as Tiger Airways Pte. Ltd.), the latter having been incorporated on December 11, 2003.

The Complainant owns and operates an airline company called "Tiger Airways" / "Tigerair" which has become one of Asia's leading low-fare airlines.

The Complainant has registered the TIGER AIRWAYS name and trademark in Singapore Class 39 (Reg. No. TO320257A) as of December 15, 2003, which covers "Air transport services" and related services. Furthermore, the Complainant holds registrations for the same trademark in another eleven countries.

In addition, the Complainant owns Singapore trademark Reg. No T1309265E TIGERAIR, dated June 11, 2013, and holds registrations for TIGERAIR in in other jurisdictions.

The Complainant owns the domain names: <www.tigerairways.com>; <tigerairways.com>; <tigerairways.com.au> and <tigerairways.co.in>.

The disputed domain name <tigerair.ws> was registered on July 3, 2013.

5. Parties' Contentions

A. Complainant

The Complainant contends, basically, the following:

That it owns and operates an airline company called "Tiger Airways"/ "Tigerair", which has become one of Asia's leading low-fare airlines.

That it has had rights in the trademark TIGER AIRWAYS since 2003 and in the trademark TIGERAIR since June 11, 2013, before the disputed domain name <tigerair.ws> was registered on July 3, 2013. Furthermore, that the Tiger Airways / Tigerair airline is a popular choice for travelers looking for a reliable, safe, low-fare carrier for Aisia-Pacific destinations, which was recently awarded the "Top airline by absolute growth in passenger carriage (Singapore)" at the Changi Ailine Awards 2014.

The Complainant has acquired substantial good-will in the marks TIGER AIRWAYS and TIGERAIR through years of trading under the same and promoting its services. The Complainant's Annual Report shows that over 5.4 million passengers booked Tiger Airway flights in its Financial Year 2011-2012 alone. The telephone operators and customer assistant representatives answer each call by the following: "Good afternoon, Tiger Airways / Tigerair. How may I assist you?"

It offers an online booking service at "www.tigerways.com", allowing customers to book air tickets online 24 hours a day. Over 90% of the Complainant's customers use this means to book their tickets.

That the disputed domain name <tigerair.ws> is identical or confusingly similar to the Complainant's trademarks TIGERAIR and TIGER AIRWAY in which the Complainant has rights.

That the Respondent has no rights or legitimate interests in the disputed domain name <tigerair.ws>, and on the balance of evidence should be found to have been registered and used it in bad faith.

In view of the foregoing, the Complainant requests that the disputed domain name <tigerair.ws> be transferred to the Complainant.

B. Respondent

The Respondent did not reply to the Complainant's contentions.

6. Discussion and Findings

For the Complaint to succeed in this proceeding, under paragraph 4(a) of the Policy, it must prove 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 Panel considers that the disputed domain name <tigerair.ws> and the trademark TIGERAIR are identical, since the suffix ".ws" is a country code Top Level Domain which conveys that the webpage has ties to Samoa and may therefore be disregarded for the confusing similarity test (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 1.2).

In addition, the Panel considers that the disputed domain name <tigerair.ws> is also confusingly similar to the trademark TIGER AIRWAYS in which the Complainant has rights. The descriptive word "ways" in AIRWAYS and the space between the words "tiger" and "airways" are insufficient to prevent Internet user confusion.

Therefore, the Complainant has succeeded on this first element of the Policy.

B. Rights or Legitimate Interests

The second element that the Complainant must prove pursuant to paragraph 4(a)(ii) of the Policy is that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Policy in paragraph 4(a) sets out various ways in which a respondent may demonstrate rights or legitimate interests in a domain name.

Although the Policy states that a complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative, i.e., that a respondent has no rights or legitimate interests in a domain name. It has therefore become generally accepted under the Policy that, once a complainant has presented a prima facie showing of a respondent's lack of rights or legitimate interests in a domain name, the burden of submitting evidence therefore shifts to the respondent. The respondent must then by concrete evidence demonstrate its rights or legitimate interests in the domain name in order to refute the prima facie case.

The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and so the burden of production of evidence has effectively been shifted to the Respondent, who did not reply to the Complainant's contentions and, therefore, has not made such showing.

None of the circumstances provided in paragraph 4(c) of the Policy, nor any other to demonstrate rights of legitimate interests in the disputed domain name have been proved by the Respondent who carries this burden.

Therefore, the Panel considers that the Respondent has no rights or legitimate interests in the disputed domain name, and therefore the Complainant has satisfied the second prong.

C. Registered and Used in Bad Faith

In accordance with paragraph 4(a)(iii) of the Policy, the third element that a complainant must prove is that the disputed domain name has been registered and is being used in bad faith.

The Policy in paragraph 4(b) sets out various circumstances, which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith.

The Complainant has owned and operated an airline company called "Tiger Airways" / "Tigerair" since 2003, which has become one of Asia's leading low-fare airlines.

In the light of the information and evidence produced by the Complainant, when the Respondent registered the disputed domain name <tigerair.ws> on June 11, 2013, it knew or should have known the existence of the Complainant's TIGER AIRWAYS / TIGERAIR trademark and successful airline business, which evidences bad faith registration.

Furthermore, as stated by the Complainant and on the basis of printouts of the website to which the disputed domain name resolves (showing that the disputed domain name is used for flight booking services), and in the absence of a rebuttal by the Respondent, the Panel finds that by using the disputed domain name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the Respondent's website.

For such reasons, the Panel finds that the Respondent both registered and is using the disputed domain name in bad faith and that the Complainant has therefore made out the third element of its case.

7. Decision

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 <tigerair.ws> be transferred to the Complainant.

Miguel B. O'Farrell
Sole Panelist
Date: July 13, 2015