WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Oman Air S.A.O.C. v. Bahi Vimal Case No. D2008-1912 1. The Parties
Complainant is Oman Air S.A.O.C., Seeb, of Oman, represented by Al Busaidy, Mansoor Jamal & Co, Oman.
Respondent is Bahi Vimal, Washington DC, United States of America, self represented. 2. The Domain Name and Registrar
The disputed domain name is registered with A Technology Company, Inc. dba . 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 16, 2008. On December 17, 2008, the Center transmitted by email to A Technology Company, Inc. dba a request for registrar verification in connection with the disputed domain name. On December 24, 2008, and December 28, 2008, A Technology Company, Inc. dba transmitted by email to the Center its verification response confirming that 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” or “UDRP”), 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 December 30, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 19, 2009. The Response was filed with the Center on January 19, 2009.
The Center appointed Clive L. Elliott as the sole panelist in this matter on January 26, 2009. 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
This dispute concerns the domain name , registered on November 4, 2002 (“Domain Name”). 5. Parties' Contentions A. Complainant
Complainant advises that it was registered as an aviation company on January 31, 1982, and that the name OMAN AIR, adopted at that time, was derived from the name of the country of the Complainant, Sultanate of Oman, and used by the Complainant in connection with airline business. Complainant asserts the name OMAN AIR has acquired an excellent reputation over the years, and has been associated with the business and various allied products and services of the Complainant together with the high quality of the products and services rendered under the name Oman Air.
Complainant advises it is the flag carrier (national airline) of Sultanate of Oman, operating to more than 27 destinations across the globe and has code sharing arrangements with various international and domestic airlines of the world. Complainant notes that it has more than 36 offices all over the world and has received several awards and international recognition.
Complainant states that it has registered the domain name , incorporating the name Oman Air, and asserts that it has a high presence on the Internet through this website, providing a comprehensive overview of Complainant's activities, including containing information about Complainant, its history, products and services, industries catered, investor relations and press rooms. It submits that the public associate the name Oman Air exclusively with Complainant and its multifarious services and activities.
Complainant provided copies of various advertisements and media articles to illustrate its high profile and asserts that it is also regularly represented at various International travel fairs. Complainant believes that the above demonstrates the exclusivity and reputation associated with Complainant and the mark OMAN AIR.
Complainant contends that the Domain Name includes the name OMAN AIR which is identical to the well-known name and/or service mark OMAN AIR in which the Complainant has a statutory as well as a right in common law, by virtue of long and continuous user.
Complainant alleges that Respondent has registered the Domain Name illegally and without authority, thereby misappropriating the mark OMAN AIR which is the exclusive property of Complainant.
Complainant states that it received an email communication on July 23, 2006 from Respondent enquiring whether Complainant would be interested in purchasing the Domain Name from him, for an amount greater than the cost of registration of the Domain Name. Complainant provided copies of correspondence exchanged between it and Respondent to this effect. Complainant asserts that the sole purpose of Respondent's registration of the Domain Name was to sell it to Complainant for valuable consideration in excess of Respondent's costs directly related to the Domain Name. B. Respondent
Respondent asserts that meaning of the Domain Name is “om an air” where, in Hinduism the word “om” is considered “air”. “om”, it is said, is “a” form of ‘air' or to be grammatically correct “om” is “an” “air”, and is known as God's voice.
Respondent asserts that prior to it acquiring the Domain Name in about 2001/2002, it was registered by a radio station, and that upon noticing that the Domain Name was becoming available, Respondent registered it on November 4, 2002, through a company called .
Respondent contends that for the first two years following registration of the Domain Name it operated the site by posting religious messages on it on a weekly basis, and that the maintenance of the site was funded by well-wishes. Respondent asserts that around 2004 due to funding issues, maintenance of this site was temporarily halted and during this time the Domain Name was transferred to the current registrar. Respondent states that “How this occurred is still a mystery” but that he continued to pay the dues to keep the Domain Name current.
Respondent alleges that about mid 2006 its email account and domain control account was hacked into and hijacked by hackers and although Respondent recovered/reset the email box by converting/upgrading it to a paid email user account (by processing yearly payments via credit card), making it hacker safe, the domain account was being hacked and forwarded to on a frequent basis. Respondent states that it strongly believes that Complainant and/or its representatives were responsible for this.
Respondent advises that around mid 2007 he received a request from Complainant asking him to surrender the Domain Name to Complainant as he was offending the Sultan of Oman, owner of Oman Airlines, and that they would pay him USD10 for the cost of registration. Respondent advises he declined to do so.
Respondent claims that the gTLD “.aero” was only introduced for the first time in 2002 by SITA specifically for the airline industry, which in Respondent's contention shows that Complainant did not have any web presence for the first 20 years of operation since its inception in 1982.
Respondent contends that it registered the Domain Name for a different purpose from the aviation sector and that it had never been used by Respondent in the Airline service industry, nor was it used in a manner competing with or hindering Complainant's day-to-day activity. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant has used the trademark and/or name OMAN AIR (the “OMAN AIR trademark”) in relation to airline services.
The Panel accepts that the OMAN AIR trademark may have some descriptive significance being the airline associated with the Sultanate of Oman. However that does not in itself mean that the OMAN AIR trademark is incapable of and in fact does not function as a trademark and therefore would not provide its proprietor with enforceable rights. Respondent does not dispute that the Complainant may have an interest in its OMAN AIR trademark.
Accordingly the Panel finds that on the submissions and evidence lodged that the OMAN AIR trademark serves to identify Complainant. The Domain Name is clearly the same as and thus confusingly similar to the OMAN AIR trademark.
Accordingly, the Panel finds that the ground is made out. B. Rights or Legitimate Interests
The real gist of Respondent's argument is that the Domain Name is based on the Hindu word “OM” and that “om” is “an” “air”, and is known as God's voice and that it has been used in the past for legitimate religious purposes.
In Museum of New Zealand Te Papa Tongarewa v. Greg Nicolas,WIPO Case No. D2004-0288 the panel in that case considered a situation involving the national museum of New Zealand (Te Papa). In rejecting the respondent's contention that the domain name Te Papa had been registered by the respondent to create a website extolling the beauties and advantages of the many places he had visited and of New Zealand, it was observed that:
“The Exciting People and Places Around”, the full name for the initials, does not immediately call to mind a website where Filipino migrant workers would find either inspiration as to other places where they might live or solace from their current adversities.”
Accordingly, the panelist concluded that the inference could be drawn that the name, “The Exciting People and Places Around”, was one concocted to give legitimacy to the disputed domain name.
In the present case, Respondent has explained his reasons for the choice of the Domain Name. The question is whether that explanation is plausible under the circumstances. The Panel finds Respondent's explanation and position to lack credibility, for the following reasons:
(i) The assertion that “om” is “an” “air”, and is known as God's voice is somewhat strained;
(ii) There is no evidence that Respondent has used the Domain Name in this particular manner, or at all;
(iii) The assertion that the Domain Name was somehow mysteriously transferred to the current registrar is difficult to understand, without some evidence to verify the circumstances;
(iv) The assertion by Complainant (verified by documentary evidence) that Respondent had offered to sell the Domain Name to it for an amount in excess of its setup cost; and
(v) The allegation that Complainant is likely to be somehow be involved in supposed hacking of Respondent's website is a serious allegation but once again no evidence is provided to prove that this occurred or that Respondent believed at the time that it had occurred and that Complainant was somehow responsible.
Given the above, the Panel concludes that Respondent lacks legitimate rights or interests in the Domain Name.
On this basis the Panel finds that the ground is made out. C. Registered and Used in Bad Faith
A finding of bad faith may be made whether Respondent knew or ought to have known of the registration and/or use of the relevant trademark, prior to registering the Domain Name: see Façonnable SAS v. Names4Sale,WIPO Case No. D2001-1365. The Panel considers that it is most unlikely that the Respondent did not know of the OMAN AIR trademark when he registered and/or acquired the Domain Name particularly given the Sultanate of Oman is relatively well-known as a Middle Eastern country and the reasonable likelihood is that the “air” designates its airline.
Account is also taken of the alleged offer to sell the Domain Name and the lack of credible evidence to dispute this.
Given the findings above and drawing the inference that Respondent had the requisite knowledge, the Panel finds that the Domain Name was registered and is being used in bad faith.
Again the Panel finds the ground is made out. 7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel concludes that:
(i) The Domain Name is the same as and confusingly similar to Complainant's trademark and;
(ii) Respondent has no rights or legitimate interests in the Domain Name; and
(iii) The Domain Name was registered and is being used in bad faith;
and the Panel orders that the Domain Name be transferred to Complainant.
Clive L. Elliott
Sole Panelist
Dated: February 10, 2009
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