WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Société Air France v. job recruitment Case No. D2008-1395 1. The Parties
The Complainant is Société Air France, Roissy, France, represented by MEYER & Partenaires, France.
The Respondent is job recruitment, Workington, Cambridgeshire, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Tucows. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 12, 2008. On September 15, 2008, the Center transmitted by email to Tucows a request for registrar verification in connection with the Domain Name. On September 15, 2008, Tucows 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 Domain Name. 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 September 18, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 8, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 9, 2008.
The Center appointed Warwick Smith as the sole panelist in this matter on October 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.
In view of the fact that the Respondent has not filed a Response, the Panel has checked to ensure that the Center has discharged its responsibility under paragraph 2(a) of the Rules, to notify the Complaint to the Respondent. The Panel is satisfied that the Center has done so. 4. Factual Background
The following facts are taken from the uncontested statements in the Complaint. A. The Complainant
The Complainant operates the well-known airline, Air France. It is based at Roissy, France. The Complainant is one of the world's major airline companies, and traces its origins back to 1933.
The Complainant is the registered owner of a large number of trade marks consisting of or including the words “Air France”. For example, the Complainant is the proprietor of the word mark AIR FRANCE in France, effective from October 31, 1991. A separate registration of the mark AIR FRANCE has been in force in France since September 6, 1999, in respect of 32 classes under the Nice Agreement, including in respect of Internet services in class 38.
The Complainant has its AIR FRANCE mark registered in the United States of America (with effect from August 2, 1995) and in the United Kingdom of Great Britain and Northern Ireland (with effect from July 28, 1987).
The Complainant's primary website is at “”. However, it has also registered many generic and country code top-level domain names consisting of or incorporating its AIR FRANCE trade mark , including and . These two domain names both point to the Complainant's website at “”, which is concerned solely with staff recruitment. B. The Respondent and the Domain Name
The Domain Name was registered on June 18, 2008.
The Respondent is not related in any way to the Complainant or its business. It has never been known by the names “Air France” or “Air France Recruitment”, and the Complainant has never authorized the Respondent to use the Complainant's trade mark.
The Complainant says that the Respondent initially used the Domain Name to activate a counterfeit website (the “Respondent's website”), on which it reproduced the Complainant's trade marks and logos.
The Complainant has produced copies of the “Contact Us” and “About Us” pages from the Respondent's website, printed on August 13, 2008. Both pages are in English and show what is clearly an Air France logo (comprising the words “Air France” above a logo device).
The “About Us” page includes a prominent heading:
“Cabin Crew Job Application Form Apply Now!”
There followed a list of questions for the interested Internet user to complete, including full details of the user's address and telephone number, date of birth, height, and country of issue of the user's passport. The user could then click on a “Submit” icon to submit his or her application.
The “About Us” page on the Respondent's website also contained some obscured wording at the foot of the page, which commenced with the words: “By submitting this information you consent to Air France Recruitment Services processing your personal details …”.
Also on the “About Us” page, there were click-through links headed “Book your trip today”, “Europe from £97”, and “USA on Sale!”.
The “Contact Us” page, included the following: “Immaculate service and unrivalled quality are everything to us here at Air France. The high standards and experience of the people we hire has helped us become one of the world's most highly rated airlines. …”
The “Contact Us” page contained a copyright claim “2006 Air France Recruitment Services Ltd”.
The Complainant never authorized the Respondent to activate such a website.
By the time the Complaint in this proceeding was filed, the Respondent's website had been disabled. Keying in the Domain Name, led the Internet user only to a webpage reading: “homestead Sorry, the site you requested has been disabled”.
C. Pre-commencement Communications between the Parties
The Complainant says that it sent a cease and desist letter (through its trade mark attorneys) to the Respondent, asking for the transfer of ownership of the Domain Name to it, before commencement of this proceeding. It did not produce a copy of the letter. The Complainant says that it received no reply from the Respondent. 5. Parties' Contentions A. Complainant
The Complainant contends:
1. The Domain Name is confusingly similar to the Complainant's AIR FRANCE mark. The Domain Name entirely includes that mark, and the addition of the word “recruitment” does not alleviate the confusion caused by the use of the Complainant's mark. The distinctive part of the Domain Name is “airfrance”, and the word “recruitment” is merely descriptive of one of the principal services offered by any company. The Complainant has dedicated an entire website to recruitment and career questions. Also, the Complainant is the registrant of the conceptually similar domain names and .
2. The Respondent has no rights or legitimate interests in respect of the Domain Name, having regard to the following:
(i) The Respondent is not related in any way to the Complainant or its business.
(ii) The Respondent has never been known by the name “Air France” or “Air France Recruitment”.
(iii) No license or authorization has been granted to the Respondent to use the Domain Name.
(iv) The Domain Name was registered by the Respondent in order to take advantage of the Complainant's well-known trade mark, to confuse Internet users and trick them into providing their personal data. The present passive holding of the Domain Name is not a bona fide offering of goods or services under paragraph 4(c)(i) of the Policy, nor a noncommercial or fair use of the Domain Name under paragraph 4(c)(iii) of the Policy.
(v) The Respondent has not engaged in any action that shows that it has a right or legitimate interest in the Domain Name.
3. The Respondent registered and has been using the Domain Name in bad faith, having regard to the following:
(i) The Complainant's AIR FRANCE mark is widely known throughout the world, and the Respondent must have known of it. The notoriety of a complainant's trade mark creates a prima facie presumption that the respondent registered the disputed domain name for the purpose of selling it to the complainant or to one of its competitors, or that it was intended to be used in some way to attract for commercial gain users to a website at the disputed domain name, by creating a likelihood of confusion with the complainant's mark (citing Arthur Guinness Son & Co. (Dublin) Ltd v. Steel Vertigogo,WIPO Case No. D2001-0020). The Respondent could not have been unaware of the Complainant's international reputation at the time it registered the Domain Name.
(ii) Taking account of its use of the Domain Name, there is no doubt that the Respondent intended the Domain Name to be understood as referring to the Complainant. The Respondent registered the Domain Name precisely because it knew the well-known character of the AIR FRANCE trade mark.
(iii) The Respondent's website was a counterfeit website, purporting to be a legitimate website operated by the Complainant, but used by the Respondent in order to capture Internet users' personal data.
(iv) Subsequently, following the disabling of the Respondent's website, the Domain Name has been passively held by the Respondent. Passive holding of a domain name can qualify as bad faith use in appropriate circumstances (citing Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003). B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
A. What the Complainant must prove – General
Under Paragraph 4(a) of the Policy, a complainant has the burden of proving the following:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Paragraph 15(a) of the Rules requires the panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
Where a respondent has not submitted a response, paragraph 5(e) of the Rules requires the Panel to “decide the dispute based on the complaint”. Under paragraph 14(b) of the Rules, the Panel may draw such inferences from a respondent's failure to comply with the Rules (e.g., by failing to file a response), as the Panel considers appropriate. B. Identical or Confusingly Similar
The Complainant has proved that it is the registered proprietor of the mark AIR FRANCE, in France and in the United Kingdom of Great Britain and Northern Ireland.
The Domain Name is clearly confusingly similar to that mark. First, it incorporates the Complainant's mark entirely. The addition of a descriptive word such as “recruitment” does nothing to remove the likelihood of confusion between the Domain Name and the Complainant's mark. Recruitment is an activity that all business entities are likely to undertake, and the Complainant itself devotes an entire website to staff recruitment. If anything, the addition of the word “recruitment” exacerbates the likelihood of confusion. Adding to a complainant's trade mark a word which is descriptive or suggestive of one of a complainant's activities carried out under its mark, is more likely to increase the likelihood of confusion than reduce it – see for example, The Ritz Hotel, Limited v. Damir Kruzicevic,WIPO Case No. D2005-1137; and Quintessentially (UK) Limited v. Mark Schnorrenberg/ Quintessentially Concierge,WIPO Case No. D2006-1643.
The “.com” suffix is not taken into account in the comparison. C. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a respondent to demonstrate that it has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy. Those circumstances are:
(i) before any notice to the respondent of the dispute, use by the respondent of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) where the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name, even if the respondent has acquired no trade mark or service mark rights; or
(iii) where the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
If the circumstances are sufficient to constitute a prima facie showing by the Complainant of absence of rights or legitimate interests on the part of the Respondent, the evidentiary burden shifts to the Respondent to show, by plausible, concrete evidence, that it does have a right or a legitimate interest in the Domain Name.
That approach is summarized at paragraph 2.1 of the Center's online document “WIPO Overview of WIPO Panel Views on Selected UDRP Questions” as follows:
“A Complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP”.
In this case, the Domain Name is confusingly similar to the Complainant's AIR FRANCE mark, and the Complainant has not authorized the Respondent to use its mark(or any confusingly similar expression), whether in a domain name or otherwise. The Respondent has no connection with the Complainant, and there is nothing in the record to suggest that the Respondent might be commonly known by the Domain Name (so as to permit the Respondent to claim a right or legitimate interest under paragraph 4(c)(ii) of the Policy).
Those circumstances are sufficient to establish a prima facie case of “no right or legitimate interest”. The evidential onus, therefore, shifts to the Respondent.
The Respondent has filed no Response, so the Complainant must succeed on this part of its Complaint. For completeness, the Panel adds that it cannot envisage any circumstances where the Respondent might conceivably have claimed a right or legitimate interest in the Domain Name. For the reasons which are set out in section 6.D. of this decision, the Respondent has clearly acted in bad faith in registering and using the Domain Name, and that bad faith registration and use effectively destroys any possibility that the Respondent might have claimed a right or legitimate interest under either paragraph 4(c)(i) or paragraph 4(c)(iii) of the Policy. D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists a number of circumstances which, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith. Those circumstances are:
(i) circumstances indicating that a respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the complainant or to a competitor of the complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the respondent has registered the disputed domain name in order to prevent the complainant from reflecting the complainant's trade mark or service 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 disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the 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 the respondent's website or location or of a product or service on the respondent's website or location.
The Complainant also succeeds on this part of the Policy. The Respondent's website, when it was being actively used by the Respondent, was quite clearly a counterfeit website, in which the Respondent was “impersonating” the Complainant (e.g., by using the Complainant's trade mark, and stating: “immaculate service and unrivaled quality are everything to us here at Air France …”). That early use of the Respondent's website demonstrates beyond any possibility of argument that the Respondent knew of the Complainant, and intended to use its reputation to attract Internet users to the Respondent's website. There, the Respondent's plan appears to have been to obtain the personal details of visitors to the site, on the pretext of considering them for employment with Air France. It seems likely that the Respondent's ultimate purpose was to perpetrate some sort of fraud, but even if it was only to attract Internet users to the click-through links headed “Book your trip today”, “Europe from £97”, and “USA on Sale!”, the Respondent has effectively impersonated the Complainant in order to attract to the Respondent's website Internet users who would reasonably but mistakenly believe that they were accessing an employment website operated by the Complainant. Those circumstances fall squarely within the category of bad faith registration and use described at paragraph 4(b)(iv) of the Policy.
The Respondent's later passive holding of the Domain Name also amounts to bad faith registration and use, in the broader sense of the expression “passive holding” discussed in Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. Specifically, the Panel cannot conceive of any use the Respondent might make of the Domain Name which would not mislead or deceive Internet users, or otherwise infringe on the Complainant's rights.
The Complainant having proved its case on each of the three subparagraphs of paragraph 4(a) of the Policy, the Domain Name must be transferred to the Complainant. 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.
Warwick Smith
Sole Panelist
Dated: October 29, 2008
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