WIPO Domain Name Decision D2005-1337 for airfrancecanada.com, airfranceflights.com, airfranceinternational.com, airfrancereservation.com, carairfrance.com, qairfrance.com

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Soci�t� Air France v. Spiral Matrix

Case No.�D2005-1337

1. The Parties

The Complainant is Soci�t� Air France, Roissy CDG Cedex, France, (the “Complainant”), represented by MEYER & Partenaires, France.

The Respondent is Spiral Matrix, Eldoret, Kenya (the “Respondent”).

2. The Domain Names and Registrar

The disputed domain names , , , , , and are registered with Intercosmos Media Group d/b/a directNIC.com.

3. Procedural History

The Complaint was submitted by e-mail to the WIPO Arbitration and Mediation Center (the�“Center”) on December�23,�2005. On December�28,�2005, the Center sent an Acknowledgement of Receipt of Complaint to the Parties. The communication was made to the Respondent by e-mail.

At the Center’s request for registrar verification of December�28,�2005, concerning the disputed domain names, Intercosmos Media Group d/b/a directNIC.com transmitted its verification response to the Center by e-mail on December�28,�2005, confirming that the Respondent is listed as the Registrant of the disputed domain names and providing the contact details for the Registrant and the technical and administrative contact.

On December�28,�2005, the Complaint was received in hard copy.

In response to a notification by the Center that the Complaint was administratively deficient on January�5,�2006, the Complainant filed an amendment to the Complaint on January�5,�2006. The Center verified that the Complaint, together with the amendment to the Complaint, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the�“Policy”), approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on October�24,�1999, 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 sent the Complaint and a formal Notification of Complaint and Commencement of Administrative Proceeding to the Respondent on January�6,�2006, by courier and e-mail, using the contact details listed in the Registrar’s WHOIS database. The courier package was undeliverable due to the fact that the address provided by the Respondent was incorrect. In accordance with the Rules, Paragraph�5(a), the due date for response was January�26,�2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January�27,�2006, by e-mail.

The Center appointed Ms.�Foteini�Papiri as the Sole Panelist in this matter on February�6,�2005. The Panelist 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. Thus, the Panel finds that it was properly constituted.

Notification of the Appointment of the Administrative Panel and Projected Decision Date were sent by e-mail to the Complainant and to the Respondent on February�6,�2006, specifying the decision date of February�20,�2006.

By email of January�24,�2006, the Complainant informed the Center that, after the filing of this proceeding, it came to the attention of the Complainant that a further “new�domain name registration” was made by the same Respondent, which was said to resolve to a parking web page. The Complainant sought the Center’s advice as to whether the new domain name registration could be added for adjudication to WIPO Case No.�D2005-1337 with the payment of the additional fee applicable. On January�25,�2006, the Center replied that the Rules do not explicitly provide for a Complaint to be amended, after the commencement of proceedings, to include additional domain names. Accordingly, the Center transmitted the request to the Panel, stating that it was at the discretion of the Panel to consider the request in accordance with Rules, Paragraph�10.

On February�16,�2006, the Panel issued Procedural Order No.�1, granting Complainant’s request to add the domain name to this proceeding. The Order:

(1) provided that Complainant was requested to immediately amend the Complaint accordingly, including, as the proceeding at that point involved six domain names, payment of an additional USD500 to the Center, in accordance with Annex D to the Supplemental Rules;

(2) requested the Center to obtain registrar verification for the additional domain name from the registrar of that domain name;

(3) following registrar verification for the domain name , requested the Center to notify the Respondent that the domain name had been added to the proceeding and allow the Respondent 20 days, in which to provide a Response in relation to this domain name;

(4) specified that this Response should only relate to the domain name and not to the other domain names involved in the proceeding;

(5) extended accordingly the Panel’s Decision date, due within 14 days from receipt of Respondent’s Response, or within 14 days from Respondent’s default, should a Response not be submitted.

The Panel’s decision to accept the addition of the domain name to this proceeding is based on consideration of the following:

The addition of domain names after the filing of a Complaint has been allowed in the past by other Administrative Panels, e.g. in Administrative Panel Decision A & F Trademark, Inc., Abercrombie & Fitch Stores, Inc., Abercrombie & Fitch Trading Co., Inc. v. Party Night, Inc., WIPO Case No.�D2003-0172, allowing the amendment of the Complaint to include an additional domain name after the filing of the Complaint and in Administrative Panel Decision PepsiCo, Inc. v. Henry Chan, WIPO Case No.�D2004-0033, allowing the amendment of the Complaint to include an additional domain name after the filing of the Complaint and the re-amendment of the Complaint to incorporate two additional domain names after the appointment of the Administrative Panel.

Paragraph�10(e) of the Rules, entitled “General Powers of the Panel” explicitly provides that a “Panel shall decide a request by a Party to consolidate multiple domain name disputes in accordance with the Policy and these Rules”. As a result, a Complainant may file a separate Complaint together with a Petition of Consolidation. In Administrative Panel Decision A & F Trademark, Inc., Abercrombie & Fitch Stores, Inc., Abercrombie & Fitch Trading Co., Inc. v. Party Night, Inc., WIPO Case No.�D2003-0172, the Panel ruled that an additional Complaint can be allowed without the need for filing a separate Complaint together with a Petition for Consolidation under certain circumstances.

In the proceeding at issue, a separate Complaint is clearly liable to be consolidated with the principal Complaint, the additional and initial Complaints are closely connected as to the factual background in a way that it is expedient to hear and determine them together in order to avoid the risk of irreconcilable decisions resulting from separate proceedings and the additional Complaint is filed against the same Respondent.

Paragraph�10(a) and 10(b) of the Rules further state:

“(a) The Panel shall conduct the administrative proceeding in such manner as it considers appropriate in accordance with the Policy and these Rules.

(b) In all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case.”

In considering whether to allow the additional Complaint, the Panel paid heed to fundamental procedural safeguards of equal treatment of the parties and the principle of providing both parties with a fair opportunity to present their case.

Consequently, the Panel allowed the Complainant to amend its Complaint by including the additional domain name , respecting fundamental procedural principles and allowing both the Complainant and the Respondent to present their case in respect of the additional domain name.

Administrative Panel Procedural Order No.�1 was notified to both parties on February�16,�2006 by e-mail. At the Center’s request for registrar verification of February�16,�2006, concerning the additional disputed domain name, Intercosmos Media Group d/b/a directNIC.com transmitted its verification response to the Center by e-mail on February�16,�2006, confirming that the Respondent is listed as the Registrant of the additional disputed domain name and providing the contact details for the Registrant and the technical and administrative contact. Receipt of the amended Complaint was acknowledged on March�7,�2006, and it was sent to the Respondent on March�10,�2006, by e-mail and courier.

The Respondent did not submit any response in respect of the domain name within the time frame set in Procedural Order No.�1. Accordingly, the Center notified the Respondent’s default on March�31,�2006, by e-mail and informed the parties that the decision due date was April�14,�2006.

The registration agreement for the domain names at issue has been done and executed in English by Respondent and Registrar. Complainant has submitted its Complaint and amended Complaint in English. In the absence of any special circumstance for the Panel to determine otherwise, as provided in the Rules, Paragraph�11, the language of this proceeding is English.

The Panel, sharing the assessment of the Center, independently finds that the Complaint and the amended Complaint were filed in accordance with the requirements of the Policy, the Rules and the Supplemental Rules, and that payment of the fees was properly made.

The Panel has not received any requests from Complainant or Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties (taking note of Respondent’s default in responding to the Complaint and the amended Complaint).

The factual and legal analysis below refers to the fully amended Complaint, incorporating the initial Complaint, unless explicitly stated otherwise. All Annexes were submitted with the initial Complaint.

4. Factual Background

Because the Complaint is formally in compliance with the Policy, the Rules and the Supplemental Rules, and because Complainant’s allegations and documents enclosed with the Complaint have not been contested, the Panel finds the following facts as having been sufficiently established:

Complainant is one of the world’s major airline companies, tracing its origins back to�1933. Complainant serves more than 200 destinations around the world, across�88�countries and operates around 1800 daily flights. Complainant also operates an international website at “” (Complaint, Annex C), where Complainant’s background is set out and Complainant’s available services and activities are presented.

Complainant owns multiple trademark and service mark registrations for the AIR FRANCE mark, in connection with numerous classes for goods or services, including the following:

AIR FRANCE, nominative mark No.�1.703.113, of October�31,�1991, registered in France for all classes of the Nice Agreement, renewed on September�27,�2001 (Complaint, Annex F1)

AIR FRANCE, nominative mark No.�99.811.269 of September�6,�1999, registered in France in 32 classes of the Nice Agreement and especially in class 38 for Internet services (Complaint, Annex F2)

AIR FRANCE, nominative mark No.�0262 of May�11,�1995, registered in Kenya in class 39, renewed on May�11,�2002 (Complaint, Annex F3)

AIR FRANCE, figurative mark No.�0263 of May�11,�1995, registered in Kenya in class�39, renewed on May�11,�2002 (Complaint, Annex F4)

Complainant is the owner of numerous domain name registrations, including , transferred to Complainant pursuant to Administrative Panel Decision Soci�t� AIR FRANCE v. Domain Active Pty Ltd., WIPO Case No.�D2004-0993, (Complaint, Annex D1), (Complaint, Annex D2) and (Complaint, p. 7).

Over the years, consumers have come to recognize the AIR FRANCE mark as indicating a product or service originating with the Complainant and the AIR FRANCE mark enjoys widespread recognition and reputation.

According to WHOIS database records furnished by the Complainant, the records for the disputed domain names were created on the following dates:

created on July�4,�2005 (Complaint, Annex�A1)

created on June�19,�2005 (Complaint, Annex�A2)

created on July�5,�2005 (Complaint, Annex�A3)

created on August�5,�2005 (Complaint, Annex�A4)

created on August�11,�2005 (Complaint, Annex�A5)

created on November�24,�2005 (Complaint, p.�6)

In particular the domain name was the subject matter of an earlier registration. It was registered by a certain Alf Temme and Complainant filed a Complaint against this party before the WIPO Arbitration and Mediation Center. The domain name was transferred to Complainant by Administrative Panel Decision Soci�t� AIR FRANCE v. Alf Temme, WIPO Case No.�D2004-0548 and its registration was renewed by Complainant for one year. It subsequently expired on October�3,�2005. The same domain name has now been registered by Respondent.

5. Parties’ Contentions

A. Complainant

The Complainant contends that: (1) the domain names , , , , and are identical or confusingly similar to the mark in which the Complainant has rights; and (2) the Respondent has no rights or legitimate interests in respect of the domain names; and (3) the domain names were registered and are being used in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions and has not made any submissions whatsoever. Under Paragraph�5(e) of the Rules, it is provided that if a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based on the Complaint. Under Paragraph�14(b) of the Rules, when a party defaults in complying with any of the requirements of the Rules, in the absence of exceptional circumstances, the Panel is entitled to “draw such inferences therefrom as it considers appropriate”. No exceptional circumstances have been brought to the Panel’s attention. Accordingly, the Panel makes the findings below on the basis of the material contained in the Complaint.

6. Discussion and Findings

This dispute is properly within the scope of the Policy, and the Administrative Panel has jurisdiction to decide the dispute. The registration agreements, pursuant to which the domain names that are the subject of this Complaint were registered, incorporate the Policy.

The Respondent is required to submit to a mandatory administrative proceeding in accordance with Paragraph�4(a) of the Policy, because the Complainant asserts, in compliance with the Rules, that:

(i) the disputed domain names are 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 domain names; and

(iii) the disputed domain names have been registered and are being used in bad faith.

Under Rules, Paragraph�10(a), the Panel is allowed inter alia to independently visit the Internet in order to obtain additional light in this default proceeding.

On April�13,�2006, the Panel attempted to visit Respondent’s website at the URLs “www.”, “www.”, “www.”, “www.”, “www.” and “www.”, using the Internet Explorer browser. The domain names , , , , , and opened to web pages containing several links relating, but not limited to, the aviation, travel and tourism industry.

A. Identical or Confusingly Similar

The Complainant has rights in the mark AIR FRANCE registered for numerous goods and services in multiple jurisdictions. Complainant’s mark is not only registered and used in the course of trade in numerous countries, but also recognized as a well-known mark. This was confirmed in several WIPO cases, which stated that Complainant has used the mark AIR FRANCE extensively and that the mark has acquired considerable fame and recognition. See e.g. Administrative Panel Decision Soci�t� AIR FRANCE v. Alvaro Collazo, WIPO Case No.�D2004-0446, Administrative Panel Decision Soci�t� AIR FRANCE v. Alvaro Collazo, WIPO Case No.�D2003-0417 and Administrative Panel Decision AIR FRANCE v. Kitchkulture, WIPO Case No.�D2002-0158.

The disputed domain names incorporate the mark AIR FRANCE, which constitutes their most significant meaningful portion. The domain names comprise of the additional descriptive terms “reservation”, “international”, “flights”, as well as the geographical term “canada”, added after the mark AIR FRANCE and the descriptive term “car” and the letter “q”, added before the mark AIR FRANCE. It is established practice to disregard the absence of spaces, as well as the top-level part of the domain names, when assessing whether the domain name is confusingly similar to the mark at issue, as such elements are dictated by the very nature of the DNS, which does not permit the existence of spaces, and the inclusion of a gTLD or a ccTLD is necessary to distinguish one namespace from others.

The Complainant has used the mark AIR FRANCE in connection with a wide variety of goods and services. As a consequence, the public has come to perceive goods and services that are offered under an AIR FRANCE mark or a variation of the same as emanating from or being endorsed by or affiliated with Complainant. The addition of the descriptive terms “reservation”, “international”, “flights”, as well as the geographical term “canada”, added after the mark AIR FRANCE and the descriptive term “car” and the letter “q”, added before the mark AIR FRANCE is a variation of the Complainant’s mark, which the average consumer would expect the Complainant or its affiliates to use in connection with the mark AIR FRANCE to identify its goods or services, especially since Complainant is primarily using its AIR FRANCE mark in connection with goods and services in the aviation, travel and tourism industry.

In particular the terms “reservation” and “flights” are clearly generic in the industry in which Complainant is active, the term “international” is customary for a leading airline company, the term “car” may attempt to create confusion in the minds of the consumers with Complainant’s operation of a bus service between airports and the centre of Paris, the term “canada” hints at Complainant’s presence and business activities in Canada and finally the letter “q” is not enough as such to distinguish Respondent’s domain name from Complainant’s mark. A domain name, which differs by only one letter, used as a prefix, from a well-known mark, is confusingly similar to the mark. Given the well-known nature of Complainant’s AIR FRANCE mark, in all aforementioned cases, the addition of descriptive terms to Complainant’s mark AIR FRANCE does not only fail to distinguish the domain names from the mark, but also reinforces the association of the domain names with Complainant’s mark.

Furthermore, Soci�t� AIR FRANCE is used as a trade name by the Complainant in numerous jurisdictions since 1933.

In that sense, the Respondent creates a likelihood of confusion in the minds of the consumers, who expect the domain names , , , , and to resolve to websites owned by, operated by or affiliated with the Complainant.

The Administrative Panel finds that the domain names are confusingly similar to the AIR FRANCE mark, in which the Complainant has proven to have rights, pursuant to Paragraph�4(a)(i) of the Policy.

B. Rights or Legitimate Interests

By its default, Respondent has not contested the allegation of the Complainant that the Respondent lacks any rights or legitimate interests in the domain names.

Complainant has a strong presence in the aviation industry, and Complainant’s first use of the AIR FRANCE mark predates the domain name registrations. In connection with Complainant’s offering of goods and services, the AIR FRANCE mark has acquired widespread recognition and goodwill. Because Complainant’s AIR FRANCE trademark and service mark registrations, as set out above, were issued before the registration of the disputed domain names, the Panel finds that the Complainant has prior trademark and service mark rights and the Respondent had actual or most likely knowledge of the well-known mark AIR FRANCE.

Complainant never granted, tacitly or otherwise, Respondent any license, rights, permission or authorization to use the AIR FRANCE mark or incorporate it in domain name registrations. There is no business link between Complainant and Respondent, Respondent is not related in any way to Complainant and there is no sponsorship, endorsement or affiliation between the two that would justify Respondent’s registration of domain names that wholly incorporate Complainant’s mark.

Currently, the domain names , , , , , and open to web pages containing several links relating, but not limited, to the aviation, travel and tourism industry.

Respondent appears to have no corporate, partnership or fictitious business name or business listing registration under the disputed domain names, nor has it claimed any rights with respect to these domain names. By its default, Respondent also failed to demonstrate legitimate interests or bona fide offering of goods or services in respect of the disputed domain names.

In any case, the result of the test independently conducted by the Panel did not show any evidence as to independent rights or legitimate interests of the Respondent in the domain names pursuant to Paragraph�4(c) under the Policy, nor could the Panel find any indication of bona fide offering of goods or services. Furthermore, there is no evidentiary support that the Respondent, as an individual, business, or other organization, has been commonly known by the domain names or that it is making a legitimate non-commercial or fair use of the domain names.

Therefore, the Administrative Panel finds that the Respondent has no rights or legitimate interests in respect of the domain names at issue, pursuant to Paragraphs�4(a)(ii) and 4(c) of the Policy.

C. Registered and Used in Bad Faith

By its default, Respondent has not contested the allegation of the Complainant concerning domain name registration and use in bad faith.

According to Paragraph�4(a)(iii) of the Policy, the Complainant must prove registration and use in bad faith. Paragraphs�4(b)(i)-(iv) of the Policy contain a non-exhaustive list of circumstances, which shall constitute evidence of registration and use of a domain name in bad faith.

Complainant contends that the domain names were registered in bad faith and that, by using the domain names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.

It is reasonable to believe that the Respondent, prior to its registration and use of the domain names, which wholly incorporate Complainant’s registered AIR FRANCE mark, was aware of the fact that Complainant was the owner of the AIR FRANCE mark because of the widespread and long-standing advertising and marketing of goods and services under the AIR FRANCE mark.

In fact, Respondent’s registration of domain names that wholly incorporate Complainant’s AIR FRANCE mark with the addition of the descriptive terms “reservation”, “car”, “canada”, “international” and “flights”, i.e. descriptive terms in the line of business that Complainant is involved, indicate that Respondent registered the domain names for the sole purpose of creating a likelihood of confusion in the minds of the consumers between the domain names and Complainant’s mark. In particular in relation to the domain name , Respondent engaged in typosquatting, taking advantage of common misspellings that Internet users may make while attempting to search for Complainant’s website based on Complainant’s AIR FRANCE well-known mark, especially due to the proximity of the letter “q” to the letter “a” on the keyboard. Respondent’s domain names, which constitute confusing variations of Complainant’s mark were apparently registered deliberately due to the fact that they create a likelihood of confusion between Respondent’s domain names and Complainant’s mark.

Furthermore, Complainant furnished the Administrative Panel with evidence that Respondent is involved in numerous other domain name registrations that relate to well-known marks and provided copies of the websites, to which these domain names resolve, such as (Complaint, Annex E1), (Complaint, Annex E2), (Complaint, Annex E3), (Complaint, Annex E4) and (Complaint, Annex E5).

Respondent has also been involved in other domain name proceedings filed before the WIPO Arbitration and Mediation Center, notably Administrative Panel Decision Talk City, Inc. v. Michael Robertson, WIPO Case No.�D2000-0009 and Administrative Panel Decision Dr. Ing. h.c. F. Porsche AG v. Kentech, Inc. a.k.a. Helois Lab a.k.a. Orion Web a.k.a. Titan Net a.k.a. Panda Ventures a.k.a. Spiral Matrix and Domain Purchase, NOLDC, Inc., WIPO Case No.�D2005-0890. In both cases, the disputed domain names were transferred to Complainant or cancelled.

Respondent’s actions so far suggest a bad faith pattern of conduct.

Upon registration of the domain names, without any license, permission or authorization from the legitimate owner of the rights in the AIR FRANCE mark, Respondent developed websites connected with the domain names , , , , , and , which contain several hyperlinks relating, but not limited, to the field of aviation, travel and tourism.

It is evident that Respondent seeks to unduly take advantage of the well-known nature of Complainant’s mark to attract more Internet users and generate revenue to Respondent’s benefit in the form of “pay per click” or sponsored links by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website and goods or services advertised there. In any case, Respondent is seeking to trade off on Complainant’s substantial goodwill associated with Complainant’s mark and to intentionally deceive the consuming public.

The disputed domain names were registered and used by Respondent solely with the purpose of intentionally attracting for commercial gain Internet users who were seeking information on Complainant’s activities and products or who believed that the websites linked to the disputed domain names were an additional service offered by the Complainant, due to the similarity of the domain names to the AIR FRANCE mark and the similarity of some of the services advertised on Respondent’s websites to those offered by Complainant.

The Administrative Panel is satisfied that Respondent registered and used the disputed domain names primarily for the purpose of diverting potential customers to its website and, thereby, diluting the fame and reputation of Complainant’s registered mark. It follows that a potential customer seeking information on Complainant’s activities and products could be drawn into Respondent’s website for commercial gain and therefore, Respondent’s activities, as demonstrated by its website, were dilutive of Complainant’s mark.

The Administrative Panel is also satisfied that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.

The circumstances surrounding Respondent’s conduct are indicative of registration and use of the domain names in bad faith. Respondent failed to file a Response bringing evidence of any legitimate commercial or non-commercial activity to the Panel’s attention.

For all the aforementioned reasons, the Panel finds that the Complainant has proven Paragraph�4(a)(iii) under the Policy.

Consequently, all the prerequisites for cancellation or transfer of the domain names are fulfilled, according to the remedies available under Paragraph�4(i) of the Policy.

The Complainant has requested transfer of the domain names.

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 names , , , , , and be transferred to the Complainant.

Foteini Papiri
Sole Panelist

Dated: April�13,�2006

Full & Egal Universal Law Academy