WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Select Appointments (Holdings) Limited, Qualitair Aviation Group Limited v. Yunsung Yunsung, Dotiz Interactive
Case No. D2008-0536
1. The Parties
The Complainants are Select Appointments (Holdings) Limited and Qualitair Aviation Group Limited. The registered office for both of the Complainants is St Albans, United Kingdom of Great Britain and Northern Ireland. The Complainants are represented by DLA Piper UK LLP, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Yunsung Yunsung, Dotiz Interactive, Seoul, Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with B, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 8, 2008. On April 9, 2008, the Center transmitted by email to B, Inc. a request for registrar verification in connection with the Domain Name. On April 10, 2008, B, Inc. transmitted by email to the Center its verification response providing the contact details for the registrant of the Domain Name. The registrant contact information did not match the Respondent information set forth in the Complaint. The Center notified the Complainants of the administrative deficiency of the Complaint on April 14, 2008. In response to such notification by the Center, the Complainants filed an amended Complaint on April 15, 2008. The Center verified that the amended 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 April 16, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 6, 2008. On April 22, 2008, the Respondent sent an email message to the Center stating that he does not speak English well and requesting to submit a response in Korean. The Center responded by email on the same date, informing the Respondent that according to paragraph 11 of the Rules, the proceedings would be conducted in the language of the registration agreement, which was English in this case. The Respondent did not submit any further communication to the Center. Accordingly, the Center notified the Respondent’s default on May 7, 2008.
The Center appointed Michelle Brownlee as the sole panelist in this matter on May 15, 2008. 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 Select Appointments (Holdings) Limited owns the following registrations for the QUALITAIR mark: United Kingdom Registration Number 1387436 for “personnel recruitment and placement; advertising for personnel vacancies” in International Class 35, United Kingdom Registration Number 1367174 for “repair, maintenance and refurbishment of aeroplanes and airport vehicles; maintenance, repair and installation of baggage and passenger handling machines” in International Class 37, and Benelux Registration Number 1105623 for services in International Classes 35 and 37.
The Domain Name was first created on April 15, 2002.
5. Parties’ Contentions
A. Complainant
The Complainant Select Appointments (Holdings) Limited has registered the QUALITAIR mark on behalf of the Complainant Qualitair Aviation Group. Although the relationship between these two companies is not fully explained, they appear to be related companies, since they share the same registered office. Qualitair Aviation Group operates a web site at the domain name and has built a substantial amount of goodwill in its aviation recruitment services. Qualitair Aviation Group has annual revenue of more than 15 million euro, and spends more than 80,000 euro per year in advertising.
The Respondent is using the Domain Name to host a pay-per-click web site that provides links to recruitment services in aircraft and aviation maintenance. The Complainants contend that the Domain Name is identical to its QUALITAIR trademark, that the Respondent has no rights or legitimate interests in the Domain Name, and that the Respondent has registered and is using the Domain Name in bad faith.
B. Respondent
The Respondent did not reply to the Complainants’ contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainants have demonstrated that they have rights in the registered trademark QUALITAIR. The second level of the Domain Name is identical to the Complainants’ trademark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate rights or legitimate interests in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue.
The Respondent has not provided any evidence of rights or legitimate interests in the Domain Name. The Respondent does not appear to be known by “Qualitair” and his use of the Domain Name to provide links to sites offering services related to the Complainants’ services in order to collect click-through referral fees cannot be considered a bona fide offering of goods or services, or a noncommercial or fair use. See PRL USA Holdings, Inc. v. LucasCobb,WIPO Case No. D2006-0162.
Accordingly, the Panel finds that the Respondent does not have any right or legitimate interest in the Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or 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 documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent 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 the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
The Complainants have established bad faith under paragraph 4(b)(iv) of the Policy. The Respondent’s use of the Domain Name to earn referral fees by linking to other web sites and generating pop-up advertisements attracts Internet users to the Respondent’s site by creating confusion as to source and results in commercial gain to the Respondent. Accordingly, the Panel finds that the Domain Name was registered and is being used 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 Complainants.
Michelle Brownlee
Sole Panelist
Dated: May 29, 2008
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