WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France, Koninklijke Luchtvaart Maatschappij v. Perfect Privacy, LLC
Case No. D2017-1074
1. The Parties
The Complainant is Société Air France of Roissy CDG Cedex, France; Koninklijke Luchtvaart Maatschappij of Amstelveen, the Netherlands, represented by MEYER & Partenaires, France.
The Respondent is Perfect Privacy, LLC of Jacksonville, Florida, United States of America ("US").
2. The Domain Name and Registrar
The disputed domain name <wwwflyingblue.com> 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 June 1, 2017. On June 1, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On June 2, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 6, 2017. In accordance with the Rules, paragraph 5, the due date for Response was June 26, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 28, 2017.
The Center appointed Peter Wild as the sole panelist in this matter on July 10, 2017. 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 Complainants are the leading airlines in a global airline alliance called "Skyteam Alliance" which has been operating a frequent flyer program under the name "Flying Blue" since 2005. The Complainants are co owners of a wide range of trademarks with the word Flying Blue, e.g. International trademark registration No. 863317 of February 23, 2005 which also designates the US. Since 2003 the Complainants ran a website under the domain name <flyingblue.com>.
The Respondent registered the disputed domain name on March 2, 2013.
The disputed domain name links to a website with a range of sponsored links, some of them also in the airline and travel industry and also to the Complainants' own website.
5. Parties' Contentions
According to the Complainants, their website serves the interests of more than 27 million members and 138 partners and enjoys a very high recognition and reputation. The Complainants refer to earlier UDRP decision confirming that the trademark FLYING BLUE is well known Société Air France, Koninklijke Luchtvaart Maatschappij v. Wan-Fu China, Ltd., WIPO Case No. D2007-0651, <flyingblue-online>. The Complainants claim that the disputed domain name is confusingly similar to their well known trademark as the words "flyin gblue" are completely incorporated and the beginning letter "www" do not make a distinction, as they are widely read as the abbreviation for World Wide Web as used for domain names, for example "www.flyingblue.com".
The Complainants furthermore assert that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainants also assert that the disputed domain name links to a website which indicates "FOR SALE-click here to buy wwwflyinglue.com …" and that the price listed is USD 1,399.
Finally, the Complainant claims that the registration and use of the disputed domain name were made in bad faith and requests transfer.
The Respondent did not reply to the Complainants' contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name is, in its distinctive part Flyingblue, identical to the Complainants' trademark. The element "www" has no influence creating a distinction in the overall appearance, being an element that typically proceeds a domain name in an Internet browser. In light of the foregoing, the Panel finds the disputed domain name to be confusingly similar to the Complainants' FLYING BLUE trademark in which Complainants have satisfactorily demonstrated their rights.
The Panel is satisfied that the first element of the policy is met.
B. Rights or Legitimate Interests
The complainant must establish a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. If the Respondent fails to do so, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP.
The Respondent is not known under the disputed domain name and claims no connection with or authorization from the Complainants. The Complainants claim that they did not grant a license or any other right to use and register the disputed domain name to the Respondent. The Respondent did not comment on the Complaint.
With the evidence on file, this Panel is satisfied that the second element of the Policy is met.
C. Registered and Used in Bad Faith
On March 2, 2013, the date of the registration of the disputed domain name, the Complainants' domain name and trademark FLYING BLUE were already registered. Given the well known character of the Complainants' trademark, is inconceivable that the Respondent did not know or at least could have known with very little research of the existence of the Complainants' earlier rights. The Respondent knew or should have known the Complainants' earlier well known trademark. There is bad faith pursuant to the Policy when Respondent "knew or should have known" of Complainant's trademark rights at the time of registration of the disputed domain name. Myer Stores Limited v. Mr. David John Singh, WIPO Case No. D2001-0763; L'Oréal v. Li Qian, Fast Hand Limited and Lisa, WIPO Case No. D2011-0868; NBC Universal Inc. v. Szk.com / Michele Dinoia, WIPO Case No. D2007-0077; and Alstom v. Domain Investments LLC, WIPO Case No. D2008-0287. The Panel therefore decides that the disputed domain name was registered in bad faith.
As it is stated in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") section 3.5. "Particularly with respect to "automatically" generated pay-per-click links, panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name (nor would such links ipso facto vest the respondent with rights or legitimate interests). Neither the fact that such links are generated by a third party such as a registrar or auction platform (or their affiliate), nor the fact that the respondent itself may not have directly profited, would by itself prevent a finding of bad faith.", see also SAP SE v. Domains by Proxy, LLC / Kamal Karmakar, WIPO Case No. D2016-2497, <sapbusinessonecloud.com>. The disputed domain name links to a website with a link farm, the links pointing to websites of the Complainants which may create the wrong impression that the website is some way related with or approved by the Complainants. It is also clear that the Respondent's use of the disputed domain name creates a likelihood of confusion and creates commercial gain as a pay-per-click site. By using the Complainants' established trademark as a disputed domain name, the Respondent tries to attract clients for commercial gain. The conclusion of bad faith is supported by the fact that the disputed domain name is listed as "FOR SALE" for an amount which is clearly much higher than the respondent's out of pocket expenses. This Panel is therefore convinced that the disputed domain name is used in bad faith.
For all these reasons, the Panel sees the third element of the Policy fulfilled.
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 <wwwflyingblue.com> be transferred to the Complainant, Société Air France.
Date: July 16, 2017