WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Soci�t� Air France v. Michal/EXLET, Tomek/EXLET
Case No. D2007-0295
1. The Parties
Complainant is Soci�t� Air France, Roissy CDG Cedex, France, represented by MEYER & Partenaires, France.
Respondent is Michal/EXLET, China, and Tomek/EXLET, China.
2. The Domain Name and Registrar
The disputed domain name is registered with Direct Information Pvt Ltd d/b/a PublicDomainR.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February�28,�2007. On March�2,�2007, the Center transmitted by email to Direct Information Pvt Ltd d/b/a PublicDomainR a request for registrar verification in connection with the domain name at issue. On March�3,�2007, Direct Information Pvt Ltd d/b/a PublicDomainR transmitted by email to the Center its verification response confirming that Respondent Tomek/EXLET is listed as the registrant and providing the contact details for the administrative, billing and technical contact. In response to a notification by the Center that Complaint was administratively deficient, Complainant filed an amendment to the Complaint on March�19,�2007 by email and on March�23,�2007 in hardcopy. 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”), 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 March�26,�2007. In accordance with the Rules, paragraph 5(a), the due date for Response was April�15,�2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April�17,�2007.
The Center appointed Manoel J. Pereira dos Santos as the sole panelist in this matter on April�26,�2007. 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 trademark upon which the Complaint is based is AIR FRANCE. According to the documentary evidence and contentions submitted, Complainant owns a large number of trademark registrations for the AIR FRANCE trademark around the world, including the French Trademark Registration No. 1,703,113 of October�31,�1991; the U.S. Trademark Registration No. 610,072 of August�2,�1955; the Community Trademark Registration No. 2,528,461 of October�7,�2003; and the Chinese Trademark Registration No. 528,440 of September�9,�1990. Reference is made to Annexes F1, F2, F3 and F4 of the Complaint.
According to the documentary evidence and contentions submitted, Complainant owns several domain names registrations that incorporate the AIR FRANCE trademark, including , , , , and . Reference is made to Annexes C and D1 of the Complaint.
The Panel notes that previous WIPO UDRP panels have recognized that the AIR FRANCE trademark is widely known and enjoys a wide scope of protection. See, e.g., Soci�t� Air Farnce v. Spiral Matrix, WIPO Case No. D2005-1337; Soci�t� Air France v. Alvaro Collazo, WIPO Case No. D2004-0446; Soci�t� Air France v. Alvaro Collazo, WIPO Case No. D2003-0417; Soci�t� Air France v. Kitchkulture, WIPO Case No. D2002-0158.
According to the documentary evidence submitted, Respondent registered the domain name with Direct Information Pvt Ltd d/b/a PublicDomainR on September�18,�2006. Complainant states that it sent a cease and desist letter to Respondent requiring the transfer of the disputed domain name and that no response to that letter was received from Respondent.
Complainant filed the Complaint against Michal/EXLET on the basis of a registrar’s Whois database search conducted on February�27,�2007. Complainant conducted also web searches about Michal/EXLET and found out that the domain name is registered under the name of Michal Guziuk with an address in Wroclaw in Poland, not in China, as indicated in the original Whois database. Reference is made to Annexes A and E of the Complaint. In its verification response the registrar advised that Tomek/EXLET is listed as the registrant, with an address in Poznan, in China. While the physical addresses differ, the email address is the same. The amended Complaint includes both Michal/EXLET and Tomek/EXLET as Respondent.
Taking into account that in both Whois database results there appears an entity named EXLET, initially represented by a person named Michal and subsequently represented by a person named Tomek, the Panel will consider both Michal/EXLET and Tomek/EXLET as Respondent. The Panel notes, that all communications in this administrative proceeding were forwarded to both representatives of Respondent as if both were acting on behalf of EXLET.
5. Parties’ Contentions
A. Complainant
Complainant contends that the disputed domain name is confusingly similar to the AIR FRANCE trademark because (i) the AIR FRANCE trademark is entirely reproduced in the domain name, (ii) the suffix “travel” refers to the main business of Complainant and suggests that the disputed domain name refers to Complainant, and (iii) Complainant owns a very similar domain name ().
Complainant further contends that Respondent has no rights or legitimate interests in respect of the disputed domain name because (i) it is not related in any way to the Complainant’s business, (ii) it is not currently and has never been known under the wordings “Air France” or “Air France Travel”, and (iii) it has not been granted any license or authorization to make any use or apply for the registration of the disputed domain name by Complainant. In addition, Complainant claims that Respondent registered the domain name to take advantage of the Complainant’s well-known trademark to confuse and divert Internet users to websites through a “per per click” domain parking solution.
Finally, Complainant argues that Respondent could not have ignored Complainant’s trademark and reputation at the time of registration of the disputed domain name due to the notoriety of the trademark AIR FRANCE, and that Respondent chose the domain name to generate commercial gain by intentionally taking advantage of Internet traffic and divert Internet users to other websites through hyperlinks. Complainant also argues that the way in which Respondent operates the disputed domain name constitutes bad faith use because (i) Respondent uses to divert Internet users to a parking webpage on which several hyperlinks are displayed including in the field of tourism and travel, and (ii) such activity generates revenue to the Respondent through a “per per click” domain parking solution.
B. Respondent
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
The consensus view is that respondent’s default does not automatically result in a decision in favor of complainant and that complainant must establish each of the three elements required by paragraph 4(a) of the UDRP (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, para. 2.2). However, paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules.
This Panel finds that there are no exceptional circumstances for the failure of Respondent to submit a Response. As a result, the Panel infers that Respondent does not deny the facts asserted and contentions made by Complainant from these facts. Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; LCIA (London Court of International Arbitration) v. Wellsbuck Corporation, WIPO Case No. D2005-0084; Ross-Simons, Inc. v. Domain.Contac, WIPO Case No. D2003-0994. Therefore, asserted facts that are not unreasonable will be taken as true and Respondent will be subject to the inferences that flow naturally from the information provided by Complainant. Reuters Limited v. Global Net 2000, Inc., supra; RX America, LLC v. Matthew Smith, WIPO Case No. D2005-0540.
The Panel will now review each of the three cumulative elements set forth in Paragraph 4(a) of the Policy to determine whether Complainant has complied with such requirements.
A. Identical or Confusingly Similar
The trademark AIR FRANCE is a widely known trademark. When a respondent merely adds generic or descriptive terms to an otherwise distinctive and famous trademark, the domain name is to be considered confusingly similar to the registered trademark. Bayer Aktiengesellschaft v. Henrik Monseen, WIPO Case No. D2003-0275; Dell Computer Corporation .v. MTO C.A. and Diabetes Education Long Life, WIPO Case No. 2002-0363; Quixtar Investments Inc.v. Dennis Hoffman, WIPO Case No. D2000-0253.
In addition, the disputed domain name also incorporates the word “travel” which is related to the main business activity of Complainant, one of the world’s major airline companies. In previous cases involving the use of the AIR FRANCE trademark together with the generic and descriptive terms “flights” and “reservations”, WIPO UDRP panels have already found the existence of confusing similarity. See Soci�t� Air France v. Spiral Matrix, supra; Soci�t� Air France v. Domain Active Pty Ltd., WIPO Case No. D2004-0993.
The risk of confusion is increased by the fact that Complainant already owns the domain name , which reinforces the possibility of a consumer in search of Complainant’s website believing that the disputed domain name is somehow connected with Complainant.
Therefore, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met.
B. Rights or Legitimate Interests
The Panel accepts Complainant’s basic contentions that (i) Respondent is not related in any way to the Complainant’s business, (ii) Respondent is not known under the wordings “Air France” or “Air France Travel”, and (iii) Respondent has not been granted any license or authorization to register or use the disputed domain name.
The Panel also takes the view that using a widely known trademark in connection with any offering of goods or services, whether or not competitive, without the prior consent of the trademark owner or licensee is a clear indication of bad faith and, therefore, does not constitute a bona fide offering of goods or services or the making of a legitimate, non-commercial use of a domain name.
Finally, the Panel finds that the Complainant has satisfied its burden of providing sufficient evidence to show that Respondent lacks rights to or legitimate interests in the disputed domain name. It has been established by previous WIPO UDRP decisions that, “while the overall burden of proof rests with the complainant, the burden of proof shifts to the respondent where the complainant establishes a prima facie case showing lack of rights and legitimate interests of the respondent to the disputed domain name”. Caixa D�Estalvis I Pensions de Barcelona v. Young N, WIPO Case No. D2006-0406; Croatia Airlines dd v. Modern Empires Internet Ltd., WIPO Case No. D2003-0455.
In light of the foregoing, the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is met.
C. Registered and Used in Bad Faith
The Panel accepts Complainant’s contention that Respondent could not have ignored the existence or the reputation of the AIR FRANCE trademark and finds that, since Respondent formed the disputed domain name by adding a descriptive term to a widely known trademark, Respondent’s motivation was to take advantage of the prestige of the AIR FRANCE trademark. As a result, the Panel concludes that Respondent registered the disputed domain name in bad faith.
The Panel also finds that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website and is obviously not making any legitimate non-commercial or fair use of the disputed domain name. In fact, as decided in a previous WIPO UDRP decision, “[t]he proper test in this Panel’s view is whether the objective consequence or effect of the Respondent’s conduct is to free-ride on the Complainant’s goodwill, whether or not that was the primary (subjective) intent of the Respondent. In light of the above, the Panel concludes that knowledge of the mark at the time of registration followed by use in commerce without a legitimate interest and likely to create confusion (and thus allow the Respondent to free-ride on the Complainant’s goodwill), is the proper test”. See Paule Ka v. Paula Korenek, WIPO Case No. D2003-0453.
Accordingly, the Panel concludes that Respondent is also using the disputed domain name in bad faith. Therefore, the Panel finds that the requirement of paragraph 4(a)(iii) of the Policy is met.
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 Complainant.
Manoel J. Pereira dos Santos
Sole Panelist
Dated: May 9, 2007
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