WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Air New Zealand Limited v. Rajkumar Ramachandran, Air Newzealand Pollution Control Systems
Case No. D2002-1154
1. The Parties
The Complainant is Air New Zealand Limited, of Auckland 1, New Zealand, represented by Baldwin Shelston Waters of New Zealand.
The Respondent is Rajkumar Ramachandran, Air Newzealand Pollution Control Systems, of Charlotte, NC, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with Bulkregister, Inc, doing business as BulkR of Suite 1500, 10 East Baltimore Street, Baltimore, Maryland 21202, United States of America.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 20, 2002. On December 20, 2002, the Center transmitted by email to BulkR a request for registrar verification in connection with the domain name at issue. On December 23, 2002, BulkR transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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 January 7, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was January 27, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent�s default on January 28, 2003.
The Center appointed Debrett G. Lyons as the sole panelist in this matter on February 3, 2003. 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 was incorporated in New Zealand in 1940, under the name Tasman Empire Airways Limited. This was changed to Air New Zealand Limited in 1965. The Complainant is an international airline with its principal focus in the Pacific region and has traded under the name �Air New Zealand� since 1965. The Complainant offers flights to and from Australia, Canada, the Cook Islands, Fiji, Germany, Hawaii, Hong Kong, Japan, New Caledonia, New Zealand, Norfolk Island, Samoa, Singapore, Rarotonga, Tahiti, Taiwan, Tonga, the United Kingdom and the United States. The Complainant is New Zealand�s national carrier and is a household name in New Zealand.
The Complainant operates its main internet website from the domain name , which receives, on average, in excess of 1.9 million hits per week. The Complainant also owns many other domain names that reflect its �Air New Zealand� name including: ; , , , , , , , , , and .
The Complainant is also a member of the �Star Alliance� airline network, whose international advertising materials refer to �Air New Zealand�.
The Complainant is the proprietor of a large portfolio of trade marks, some 123 of which include the words �Air New Zealand�. These are spread across 22 countries and the European Community.
Esquare, Inc registered the domain name on October 4, 2001, with the Respondent�s name and email address listed as the contact name. (This was at some later date amended to Air Newzealand Pollution Control Systems, still with the Respondent�s name and email address listed as the contact name.) The Complainant�s representative sent a letter to Esquare, Inc, on June 5, 2002, asserting the Complainant�s trade mark rights and requesting a transfer of the domain name.
In a telephone conversation with the Complainant�s representative on June 20, 2002, the Respondent claimed to be establishing a company in India that would provide air pollution control solutions in New Zealand. The Respondent further claimed to have filed company registration documents in India, developed a website for use in conjunction with the domain name, printed stationary featuring the domain name and prepared advertising materials for newspapers. The Respondent said he would transfer the domain name if the Complainant met the costs of changing the materials the Respondent had developed. On June 27, 2002, the Respondent said such costs were US$2,200; this figure was revised by the Respondent to US$3,100 on July 16, 2002.
The Complainant�s representative requested evidence of the company registration, website, stationary and advertisements on July 16, 2002, and again on July 25, 2002. On August 5, 2002, the Respondent refused to provide this evidence claiming that the materials were confidential.
On September 20, 2002, the Complainant�s representative informed the Respondent that the Complainant was not prepared to contribute to any costs the Respondent incurs as a result of having to change domain name. The Respondent asked the Complainant to re-consider payment of these costs on October 16, 2002, but still did not provide any of the evidence requested by the Complainant�s representative.
On November 4, 2002, the Complainant�s representative again wrote to the Respondent asking for evidence of the company registration, website, stationary and advertisements. In addition, the Complainant�s representative offered a confidentiality undertaking both on its own behalf and on behalf of the Complainant. The Respondent replied on November 13, 2002, saying that the evidence would be sent to the Complainant�s representative by 5:00 pm on November 27, 2002.
The Respondent has failed to provide the evidence requested by the Complainant and failed to file a Response to the Complaint.
5. Parties� Contentions
A. Complainant
The Complainant seeks the transfer of the domain name from the Respondent to the Complainant in accordance with the Policy, paragraph 4(b)(i).
The Complainant contends that the domain name is identical or confusingly similar to the Complainant�s trade marks, that the Respondent has no right or legitimate interest in the domain name and that the domain name was registered and is being used in bad faith.
B. Respondent
The Respondent has not filed a Response replying to the Complainant�s contentions.
6. Discussion and Findings
Since the Respondent has not submitted a Response, the Panel has no alternative but to accept as true all of the factual contentions made by the Complainant in accordance with the Rules, paragraph 5(e):
"If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint."
Even though there has been no Response the panel must, under the Rules, paragraph 14(a) "proceed to a decision on the complaint".
For the Complainant to succeed, it must show that the Respondent meets each of the criteria in the Policy, paragraph 4(a):
"(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith."
A. Identical or Confusingly Similar
The Complainant has a world-wide portfolio of trade marks which are either identical or similar to the domain name.
Therefore, under the Policy, paragraph 4(a)(i) the Panel considers the domain name is identical and confusingly similar to several trademarks in which the Complainant has rights.
B. Rights or Legitimate Interests
By failing to file a Response, the Respondent has done nothing to contest the allegations of the Complainant that it lacks any rights or legitimate interests in the disputed domain name.
The Policy, paragraph 4(c) sets out the ways in which the Respondent can show rights or legitimate interests in a disputed domain name:
"(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 known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue"
The Complainant has failed to provide any evidence of its assertions in correspondence to the Complainant�s representative that it has a company registration for Air Newzealand Pollution Control Systems in India. In relation to the alleged company registration, the Complainant�s representative has performed searches through an agent in India and has found no such company. The Complainant�s representative has also performed searches through an agent for a company registration in North Carolina, United States (the address given in the domain name registration details) and Delaware, United States (the state in which the majority of United States companies are registered); neither state has a company registration for Air Newzealand Pollution Control Systems. The Complainant�s representative has performed searches in the Complainant�s native New Zealand; New Zealand has no company registration for Air Newzealand Pollution Control Systems.
Apart from the non-existence of the company registration alleged by the Respondent, the Respondent has also failed to provide any evidence that it has designed and prepared a website, stationary and advertisements on behalf of Air Newzealand Pollution Control Systems.
Therefore, in the absence of evidence to the contrary, the Panel can only, under the Rules, paragraph 14(b), draw the inference that:
(i) the Respondent cannot provide the company registration, website, stationary or advertisements to demonstrate its preparations to use the domain name in relation to a bona fide offering of goods or services; and
(ii) the Respondent has no trading activity in India, the United States or New Zealand and therefore cannot be commonly known by the domain name; and
(iii) the Respondent is intent on using the domain name to divert customers from the Complainant.
Therefore under the Policy, paragraph 4(a)(ii), the Panel considers the Respondent has no rights or legitimate interests in respect of the domain name.
C. Registered and Used in Bad Faith
By failing to file a Response, the Respondent has done nothing to contest the allegations of the Complainant that it has registered and is using the domain name in bad faith.
The Policy, paragraph 4(b) sets out the ways in which the Claimant can show the domain name is registered and used 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 the competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or another on-line location, by creating the 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."
As stated under section B (Rights or Legitimate Interests) above, the Respondent has failed to provide any evidence that the company Air New Zealand Pollution Systems exists or any evidence of the website, stationary or advertising materials allegedly prepared on its behalf. The Complainant�s representative repeatedly requested such evidence and offered a confidentiality undertaking on behalf of it and the Complainant.
The Respondent has failed to provide any breakdown or evidence in relation to his alleged costs (which were originally stated as US$2,200 but were then stated as US$3,100).
Therefore, in the absence of evidence to the contrary, the Panel can only, under the Rules, paragraph 14(b), draw the inference that the Respondent acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name for valuable consideration in excess of the Respondent�s documented out of pocket costs directly related to the domain name.
The listed registrant in relation to the domain name was originally a company called Esquare, Inc (with the Respondent�s name and email address listed as the contact). At the time of registration Esquare, Inc was also listed as the registrant of , , and . Three of these domain names use the name by which Saudi Airlines, Singapore Air and Qatar Airways are known.
This constitutes an established pattern of registering domain names that are uniquely related to airlines to capitalize on their reputation and goodwill.
Therefore, in the absence of evidence to the contrary, the Panel can only, under the Rules, paragraph 14(b), draw the inference that the Respondent has registered the domain name in order to prevent the Complainant from reflecting the mark in a corresponding domain name and that the Respondent has engaged in a pattern of such conduct in relation to airlines.
The Complainant�s representative has provided substantial evidence illustrating the world-wide and high-profile nature of the Claimant�s business, including details of the Air New Zealand websites and hit rates on Internet search engines. This makes the existence of the Complainant very clear to anyone who conducts an Internet search for "Air New Zealand".
The Respondent has failed to provide any evidence of use having developed a website for use in conjunction with the domain name or having made any other non-commercial, or fair use, of the domain name.
Therefore, in the absence of evidence to the contrary, the Panel can only, under the Rules, paragraph 14(b), draw the inference that the Respondent intends to use the domain name to attract, for commercial gain, Internet users to its website by misleading Internet users who are seeking an official Air New Zealand website.
Therefore under the Policy, paragraph 4(a)(iii), the Panel considers the Respondent has registered and used the domain name in bad faith.
7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules the Panel orders that the domain name be transferred to the Complainant.
Debrett G. Lyons
Sole Panelist
Dated: February 14, 2003
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