WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Austrian Airlines AG. v. Stanley Varanian
Case No. D2008-1027
1. The Parties
The Complainant is Austrian Airlines AG., Vienna-Airport, Austria, represented internally.
The Respondent is Stanley Varanian, San Francisco, California, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with 1&1 Internet AG.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 8, 2008. On July 8, 2008, the Center transmitted by email to 1&1 Internet AG a request for registrar verification in connection with the domain name at issue. On July 9, 2008, 1&1 Internet AG transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 July 14, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was August 3, 2008. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on August 5, 2008.
The Center appointed Adam Samuel as the sole panelist in this matter on August 11, 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 is the Austrian national airline. It owns trademark registrations for AUSTRIAN AIRLINES in Austria, numbers 68168 and 164.554 and in the United States of America (“US”), number 2,546,433.
5. Parties' Contentions
A. Complainant
The Complainant owns several Austrian and US trademarks reflecting the company name “Austrian Airlines” under which the company has been doing business since its foundation in 1957. The disputed domain name is identical or at least confusingly similar to the registered trademarks AUSTRIAN AIRLINES.
There is neither evidence of the Respondent's use of, or demonstrable preparations to use the domain name or a name corresponding to its in connection with a bona fide offering of goods or services. The Respondent has not been commonly known by the domain name and has not acquired any trademark or service mark rights connected to it. The Respondent is making a commercial and unfair use of the domain name with intent to make commercial gain by misleading and diverting the customers to its website and by tarnishing the Complainant's well-known trademarks which enjoy high international reputation.
The disputed domain name is used for selling airline tickets. By acquiring a domain name identical with the Complainant's famous marks, the Respondent gives Internet users the impression that its site is hosted, registered and used by the Complainant to sell airline tickets at discounted rates. When acquiring the disputed domain name, the Respondent must have had actual knowledge of the Complainant's trademark. In April 2008, the Complainant sent a cease and desist letter to the Respondent to which he did not reply
B. Respondent
The Respondent did not file a Response or otherwise reply to the Complainant's contentions.
6. Discussion and Findings
Under the Policy, the Complainant must prove that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which it has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has registered trademarks in the AUSTRIAN AIRLINES mark in Austria and a further trademark for the same name in the US. The disputed domain name here is identical to that mark except for the addition of the suffix “.info”. It is confusingly similar to the Complainant's trademark.
B. Rights or Legitimate Interests
There is no evidence that the Complainant has authorized the Respondent to use his trademark. The Respondent has not asserted any rights or legitimate interests in that name.
For these reasons, on the basis of the available evidence, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
The domain name, less the generic top level domain suffix, is identical to the Complainant's trademark and common business name. There appears to be no reason why the Respondent should have selected the name but for that fact. This shows that the Respondent registered the domain name in bad faith.
Continuing to hold a domain name knowing that it reflects someone else's trademark without a good reason is itself bad faith use. In addition, here, the website to which the domain name resolves uses the Complainant's trademark and appears to be exploiting the mark's ability to attract Internet users looking for the Complainant's website in order to sell cheap airfares. The Respondent is aware of the Complainant's trademark and is using it to profit from customers attracted to his website by the use of that mark. All this is evidence of bad faith use.
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.
Adam Samuel
Sole Panelist
Dated: August 18, 2008
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