WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Tiger Airways Holding Limited v. Nguyen Van Van
Case No. D2015-0838
1. The Parties
Complainant is Tiger Airways Holding Limited of Singapore, represented by Amica Law LLC, Singapore.
Respondent is Nguyen Van Van of Ha-Noi, Viet Nam.
2. The Domain Name and Registrar
The disputed domain name <tiger-airways.net> (the "Domain Name") is registered with eNom (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 Domain Name. On May 14, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on May 26, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on May 27, 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 Respondent of the Complaint, and the proceedings commenced on June 2, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was June 22, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on June 23, 2015.
The Center appointed Clive L. Elliott Q.C. as the sole panelist in this matter on July 9, 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
Complainant, Tiger Airways Holdings Limited, states that it is a private limited company incorporated under laws of the Republic of Singapore. It is the parent company of Tiger Airways Singapore Pte. Ltd, the latter having been incorporated on December 11, 2003. Complainant owns and operates an airline company called "Tiger Airways" / "Tigerair". Since its establishment in 2003, it has become one of Asia's leading low-fare airlines.
Complainant states that it offers an online booking service at "www.tigerairways.com", allowing customers worldwide to book air tickets 24 hours a day, and over 90% of its customers use this means to book their tickets. Complainant's website also offers hotel accommodation and car hire options and receives over 40,000 visitors to their website daily. Complainant also offers customers the ability to purchase tickets at airport counters and over the telephone, which accounts for approximately 10% of sales, making the Internet the principal means of promotion and sale of Complainant's products and services.
Complainant asserts that it registered the TIGER AIRWAYS name and trade mark in Singapore in Class 39 on December 15, 2003. It has also registered and/or uses the following domain names: <www.tigerairways.com>; <tigerairways.com>; <tigerairways.com.au>; and <tigerairways.co.in>.
Complainant further asserts that it owns numerous trade mark and domain name registrations for the TIGER AIRWAYS mark ("Complainant's Trade Mark") worldwide, which rights were obtained some nine years before the creation of the Domain Name, and that it has acquired substantial goodwill in Complainant's Trade Mark through years of trading under the same name and promoting its services. Complainant advises that over 5,4 million passengers booked TIGER AIRWAYS flights in Financial Year 2011-2012 alone.
According to Whois the Domain Name was registered on July 30, 2012.
5. Parties' Contentions
It is submitted that the Domain Name is confusingly similar to Complainant's Trade Mark as there is no distinguishing feature in the Domain Name that sets it apart from Complainant's Trade Mark. The only differences between the Domain Name and Complainant's Trade Mark are the presence of a dash ("-") symbol, and the ".net" suffix. These differences would not be apparent visually or orally in most situations.
Complainant submits that as it owns the domain name <tigerairways.com>, it believes that Internet users would assume that the Domain Name points to a related website of Complainant and would therefore pursue goods or services under a mistaken belief. Such mistakes could lead to the erosion of the valuable goodwill and reputation in Complainant's Trade Mark.
Complainant asserts that, based on the content of the webpage sited at the Domain Name, it appears to be owned and managed by V&V Booking, an air ticket agent in Viet Nam that has no relationship with Complainant. The layout of the webpage sited at the Domain Name is also similar to Complainant's own website, and in view of this, Complainant submits that Respondent's use of the Domain Name is calculated to mislead Internet users into believing that Respondent's webpage is somehow affiliated to, endorsed by or otherwise associated with Complainant when no such association exists, and/or is calculated to derive income from misleading Internet users to visit its site.
It is submitted that the TIGER AIRWAYS name and trade mark is sufficiently well-known that its use as a domain name would similarly indicate knowledge on the part of Respondent. Such knowledge thereby constitutes bad faith.
Complainant notes that V & V Booking also operates a similar webpage sited at <tigerairways.org>, and much like the Domain Name, <tiger-airways.org> bears a strong resemblance to Complainant's website, "www.tigerairways.com". Complainant suggests that these webpages demonstrate a pattern of conduct calculated to deceive consumers into believing they were dealing with Complainant or one of its authorised agents. Accordingly, Complainant submits that Respondent has unlawfully and in bad faith appropriated Complainant's Trade Mark.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Complainant asserts that it is a well-known and successful airline and since its establishment in 2003 has become one of Asia's leading low-fare airlines. Complainant operates its airline and has acquired rights both at common law and through registration worldwide, but certainly in Singapore, where it is headquartered. That is, in relation to the TIGER AIRWAYS mark ("Complainant's Trade Mark"). Complainant contends that as a result of the use of Complainant's Trade Mark and various domain names containing or comprising Complainant's Trade Mark it has acquired valuable rights. None of this is disputed by Respondent.
The Panel is fully satisfied that Complainant has established substantial rights in Complainant's Trade Mark in connection with airline travel services. In light of Complainant's assertions and lack of any denial by Respondent the Panel accepts that Complainant's Trade Mark is identified with Complainant and that an unrelated entity or person using a similar domain name is likely to lead to members of the public being confused and deceived.
Complainant argues that the Domain Name is confusingly similar to Complainant's Trade Mark as there is no distinguishing feature in the Domain Name that sets it apart from Complainant's Trade Mark. It is submitted that the only differences between the Domain Name and Complainant's Trade Mark are the presence of a dash ("-") symbol, and the ".net" suffix. The Panel accepts that these differences are inconsequential and would certainly not be apparent visually or orally in most situations.
There is obvious merit in Complainant's position and the Panel finds:
a) Complainant has rights in respect of Complainant's Trade Mark.
b) The Domain Name is, but for the ("-") symbol, identical to Complainant's Trade Mark in so far as it contains the distinctive element TIGER AIRWAYS.
Accordingly, the Panel is satisfied that the first element of the Policy has been met.
B. Rights or Legitimate Interests
The question of whether Respondent has rights or legitimate interests in the Domain Name must be assessed against Complainant's significant rights, such assessment taking into account the manner in which Respondent uses the Domain Name.
Complainant submits that Respondent is using the Domain Name on a webpage which it suggests seems to be owned and managed by an air ticket agent in Viet Nam that has no relationship with Complainant. Complainant also asserts that the said webpage has a similar "look and feel" as Complainant's website. On this basis, Complainant submits that Respondent's use of the Domain Name is calculated to mislead Internet users into believing that Respondent's webpage is somehow connected with Complainant, contrary to the fact.
Given the repute of Complainant's Trade Mark and in the absence of any explanation or attempt at rebuttal the Panel accepts that Complainant's argument is factually correct and has merit.
The Panel accepts that Respondent appears to be using the Domain Name to attract Internet users to a webpage involved in some way with air ticket bookings, thereby creating a likelihood of confusion between Complainant's Trade Mark and goods or services offered by Respondent or an entity with which it is associated, whether directly or indirectly.
In the absence of any license or permission from Complainant to use Complainant's Trade Mark, no actual or contemplated bona fide or legitimate use of the Domain Name could reasonably be claimed or indeed inferred by the Panel. Under the circumstances it is difficult to see how an unauthorised webpage of this nature could be characterized as legitimate and thus permissible.
On this basis the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
The Panel is satisfied that the second element of the Policy has been met.
C. Registered and Used in Bad Faith
Having reached the view that Respondent lacks any license or permission to use Complainant's Trade Mark and for the reasons set out above it is reasonable to infer that Respondent wishes to take advantage of Internet users who may know of or otherwise wish to purchase Complainant's well-known airfares and/or services.
In the absence of any explanation from Respondent as to how and why it chose the Domain Name the Panel finds that it registered and used the Domain Name in bad faith. That is, so as to take advantage of Internet users who know of Complainant and its affordable airline services provided under Complainant's Trade Mark.
The Panel thus concludes that the third element of the Policy has been met.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <tiger-airways.net> be transferred to Complainant.
Clive L. Elliott QC
Date: July 24, 2015