WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Martinair Holland N.V. .v. European Travel Network
Case No. D2000-0964
1. The Parties
The Complainant is Martinair Holland N.V. of Havenmeesterweg 201, 1118 CR, Luchthaven Schiphol, The Netherlands.
The Respondent is European Travel Network with addresses at P O Box 025 216 SJO 1714, Miami, FL 33102-5216, United States of America; P O Box 561, Eindhoven, Noord-Brabant, 5600 AN, The Netherlands; and in Costa Rica.
2. The Domain Names and Registrar
The domain names at issue are: ""; and
""
and the Registrar is: Network Solutions, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center [the Center] received the Complaint on August 7, 2000, [electronic version] and on August 8, 2000, [hard copy]. The Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy [the Policy], the Rules for Uniform Domain Name Dispute Resolution Policy [the Rules], and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy [the Supplemental Rules]. The Complainant made the required payment to the Center.
The formal date of the commencement of this administrative proceeding is August 18, 2000.
On August 14, 2000, the Center transmitted via email to Network Solutions, Inc a request for registrar verification in connection with this case and on August 17, 2000, Network Solutions, Inc transmitted by email to the Center Network Solution's verification response confirming that the registrant is European Travel Network of Miami and that the contact for both administrative and billing purposes is European Travel Network of Eindhoven.
Having verified that the Complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted on August 18, 2000, to
"etnphone@";
"etnphone@";
"AdLatjes@";
"etnho@";
"ad@ETN.NL";
"ad@ETN.ORG;
"@WORLDNIC.NET";
"postmaster@"; and
"postmaster@"
this Notification of Complaint and Commencement of the Administrative Proceeding. The Center advised that the Response was due by September 6, 2000. On the same day the Center transmitted by fax and by mail copies of the foregoing documents to:
European Travel Network
P O Box 025 216 - SJO 1714
Miami, FL 33102-516
United States of America
European Travel Network
P O Box 561, Eindhoven
Noord-Brabant, 5600 AN
The Netherlands
World NIC Name Host
Network Solutions, Inc
505 Huntmar Park Drive
Herndon, VA 20170
United States of America
On August 29, 2000, the Center advised the Complainant that Paragraph VIII of the Complaint, Mutual Jurisdiction, did not comply with paragraph 3(b) (xiii) of the Rules, which provides that the Complaint must
"(xiii)State that Complainant will submit with respect to any challenges to a decision in the administrative proceeding cancelling or transferring the domain name, to the jurisdiction of the Courts in at least one specified Mutual Jurisdiction."
It was, therefore, necessary for the Complaint to be amended - which it duly was on August 30, 2000, - so as to signify the Complainant's agreement to submit to the jurisdiction of the Courts where the Respondent is located, as shown by the address given for the domain name holder in the concerned registrar's Whois database at the time of the submission of the Complaint to the Center.
No Response was received from the Respondents by the due date of September 6, 2000. On September 12, 2000, Notice of Respondent Default was sent to the Complainant and to the Respondent using the same contact details and methods as were used for the Notification of Complaint and Commencement of the Administrative Proceeding.
However, on September 14, 2000, a Response was received by the Center and Acknowledgement of Receipt of Response was transmitted to the parties on September 22, 2000. The Response was, therefore, filed 8 days late. Paragraph 14(a) of the Rules provides:
"(a) In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the Complaint".
Although the Rules refer to exceptional circumstances being necessary to admit a late filed Response [Rules paragraph 5(e)], the Panel shall ensure that the parties are treated with equality and that each party is given a fair opportunity to present its case [Rules paragraph 10(b)]. The Panel shall also ensure that the administrative proceeding takes place with due expedition [Rules paragraph 10(c)]. In this case, it was (as stated above) necessary for the Complainant to amend its Complaint, which it duly did by email and by letter dated August 30, 2000. If time to file Response were calculated from that date, the Response filed September 14, 2000, would have been in due time.
Was the amendment to the Complaint of such a nature to justify the Panel extending time for filing the Complaint by 20 days from August 30, 2000? The answer is probably not. However, the delay in this case was only 8 days, which has not hindered the due expedition of this administrative proceeding. The Panel, therefore, rules that the Response shall be admitted.
Further, the Response in this case is identical to Respondent's Response in Case D2000-0963 which was filed 4 days earlier on September 10, 2000. The Complainant and the Center therefore already had the substance of the Response by that date.
Having received on October 4, 2000, Mr David Perkins' Declaration of Impartiality and Independence and his Statement of Acceptance, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr David Perkins was formally appointed as the Sole Panellist. The Projected Decision Date was October 20, 2000. The Sole Panellist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and the Supplemental Rules.
Having reviewed the communication records in the case file, the Administrative Panel finds that the Center has discharged its responsibility under paragraph 2(a) of the Rules "to employ reasonably available means calculated to achieve actual notice to Respondent". Therefore, the Administrative Panel shall issue its Decision based upon the Complaint (as amended), late filed Response, the Policy, the Rules and the Supplemental Rules.
4. Factual background
4.1 The Complainant
The Complainant is Martinair Holland, a well known Dutch airline company.
4.2 The Complainant's Trade Mark
The Complaint identifies the following registered trademarks for services including transportation and aviation services.
Country
Mark
Registration No.
Class(es) of Services
Date
European Union
MARTINAIR HOLLAND & device
1,002,211
39: 41; & 42
November 27, 1998
International Registration 1
MARTINAIR HOLLAND & device
666,517
39: 41; & 42
November 22, 1996
Benelux
MARTINAIR
(Word Mark)
157,974
35: 37: 39: 41; & 42
December 22, 1987
Benelux
MARTINAIR (Word Mark)
385,495
14: 16: 18: 24: 25: 28; & 34
November 12, 1982
Benelux
MARTINAIR HOLLAND & device
592,202
39: 41; & 42
May 15, 1996
4.3 The Complainant's Top Level Domain Names
The Complaint states that Martinair Holland intends eventually to offer all of its services through the Internet. Registered domain names include:
"" (registered May 29, 1998); and
""
The Complainant also owns cc TLDs such as:
"" (registered April 14, 1997):
"":
"":
""; and
"".
4.4 The Respondent
The background to and the activities of the Respondent's business are fully set out in this Panel's Decision in Case D2000-0963 and do not require repetition here.
4.5 The Complaint states that the Respondent has connected its "www." / discount site to the domain names in issue.
4.6 Other Legal Proceedings between the Parties
Again, the facts are the same as in relation to Case D20090-0963, the only difference being that the Complainant in this case sent its cease and desist letter on March 29, 2000.
5. Parties' Contentions
5.1 A. The Complainant
The Complainant contends that the Respondent has registered as domain names a mark which is identical or confusingly similar to a trade mark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of those domain names and that the Respondent has registered and is using those domain names in bad faith.
B. The Respondent
The Response is in identical form to that filed in Case D2000-0963, the Respondent stating that, because the Complainant is majority owned by KLM [the Complainant in Case D2000-0963] and its senior management "� is staffed by KLM people �", the Respondent's contentions in this dispute are the same as those advanced by it in Case D2000-0963. Those contentions are fully set out in this Panel's Decision in that Case and do not require repetition here, save that in relation to the Respondent's abandonment theory the Response refers to the Complainant's registration of "" on May 29, 1998, and of "" on April 14, 1997, (see, paragraph 4.3 above).
6. Discussion and Findings
6.1 The Policy paragraph 4a provides that the Complainant must prove each of the following;
● that the Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
● the respondent has no rights or legitimate interests in respect of the domain name; and
● the domain name has been registered and is being used in bad faith.
6.2 Identical or Confusingly Similar
The Response does not deny that the domain names in issue are identical or confusingly similar to the Complainant's MARTINAIR and MARTINAIR HOLLAND marks. The Panel is satisfied that the Complainant owns those marks, that the domain names in issue are identical to the MARTINAIR mark and confusingly similar to the MARTINAIR HOLLAND mark and, consequently, that the Complainant meets the requirements of paragraph 4a(i) of the Policy.
6.3 Rights or Legitimate Interests
Paragraph 4c of the Policy identifies circumstances which, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all the evidence presented shall demonstrate the Respondent's rights or legitimate interests for the purposes of paragraph 4a(ii) of the Policy.
6.4 There is nothing in the Response to indicate that the Respondent falls within any of the circumstances identified in paragraph 4c of the Policy. Rather the reverse. The Respondent states that, even though it is "a global player in the travel business with customers in 125 countries", it only uses the "www." domain name. Connecting its "www." / discount site to the two domain names in issue does not create rights or legitimate interests for the purposes of paragraph 4c of the Policy.
6.5 The Panel can find no evidence that would tend to establish that the Respondent has rights or legitimate interests in respect of the domain names in issue. The Complainant has not licensed or otherwise permitted the Respondent to use the MARTINAIR and/or MARTINAIR HOLLAND marks or to apply for or use any domain name incorporating those marks. The Panel does not accept the Respondent's abandonment theory in this respect. The Complainant, therefore, succeeds in establishing the requirements of paragraph 4(a)(ii) of the Policy.
6.6 Registered and Used in Bad Faith
Paragraph 4b of the Policy sets out circumstances which, "� if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith". These circumstances are not exhaustive of the circumstances indicating registration and use in bad faith.
6.7 Registration in Bad Faith
The Respondent's case is based on two propositions. First, the abandonment theory, which (as already stated in paragraph 6.5 above of its Decision in Case D2000-0963) this Panel does not accept. Second, that ".com", ".net" and ".org" TLDs are designed for use only by companies located in the United States, so that the Respondent has every right to register the domain name in issue. This proposition is manifestly incorrect. In the Panel's view the Respondent has shown no basis for finding that it had any good faith reason for registering the two domain names in issue.
6.8 Used in Bad Faith
The Respondent has stated that it uses only the "www." domain name for its global travel business [paragraph 6.4 above]. In its own monthly newsletter the Respondent chronicles its history of disputes with the Complainant's parent company KLM. Against that background it is perhaps not unreasonable to conclude that, registration of the domain names in issue was primarily for the purpose of disrupting the business of the Complainant with whom the Respondent competes. Further, the Complainant's MARTINAIR trademark is known in many countries and it is difficult to conceive of any use of that mark by the Respondent that could be legitimate and not actionable under the Complainant's trademark rights and/or under consumer protection legislation.
6.9 The Panel, therefore, finds that the Complainant has succeeded in fulfilling the third legal of the requirements under paragraph 4a of the Policy.
7. Decision
For all the foregoing reasons, the Panel decides that the Complainant has satisfied each of the three elements of paragraph 4a of the Policy. Accordingly, the Panel requires that the registration of the domain names "" and "" be transferred to the Complainant.
David Perkins
Sole Panellist
Dated: October 24, 2000
Footnotes:
1. The countries covered by IR 666,517 are China and Cuba.
Full & Egal Universal Law Academy