WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Air France KLM v. Ho Nim Case No. D2010-0838 1. The Parties
The Complainant is Air France KLM of Paris, France, represented by Meyer & Partenaires, France.
The Respondent is Ho Nim of Shanghai, the People's Republic of China. 2. The Domain Name and Registrar
The disputed domain name (“Disputed Domain Name”) is registered with A, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 25, 2010. On May 25, 2010, the Center transmitted by email to A, Inc. a request for registrar verification in connection with the Disputed Domain Name. On May 26, 2010, A, Inc. 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” 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 the Respondent of the Complaint, and the proceedings commenced on June 1, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 21, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on June 22, 2010.
The Center appointed Tan Tee Jim, S.C. as the sole panelist in this matter on July 1, 2010. 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 Air France - KLM holding company. Air France - KLM is the result of a merger announced on September 29, 2003 between the two companies in the field of air transportation. Together, Air France and KLM form one of the largest airline companies in Europe and in the world, serving 244 destinations in more than 100 countries around the globe with a fleet of about 640 aircraft.
The Complainant is the registered owner of a large number of trade marks consisting of AIR FRANCE KLM (the “Complainant's Trade Mark”) in many countries, including France and the People's Republic of China.
Air France and KLM have several joint operations, including a travel program called “Global meetings” dedicated to organizers and attendees of travel planning for special events. The Air France - KLM group has registered several domain names, including , , and .
The Disputed Domain Name is registered with A, Inc by the Respondent. The Respondent operates a website using the Disputed Domain Name. 5. Parties' Contentions A. Complainant
The Complainant contends that:
(1) The Disputed Domain Name is confusingly similar to the Complainant's Trade Mark for the following reasons:
a. The Complainant's Trade Mark AIR FRANCE KLM is entirely reproduced in the Disputed Domain Name;
b. The lack of spaces between the words “air” and “france” and between the words “france” and “klm” in the Disputed Domain Name is inconsequential because the absence of spaces does not establish a meaningful difference between the Complainant's Trade Mark and the Disputed Domain Name;
c. The addition of the words “globalmeetings” in the Disputed Domain Name does not alter the fact that there is a likelihood of confusion, and in fact suggests that the Disputed Domain Name refers to the Complainant or to a commercial activity which the Complainant is directly involved in;
d. The addition of a gTLD suffix (“.com”) to a domain name does not change the fact that the Disputed Domain Name is confusingly similar to the Complainant's Trade Mark.
(2) The Respondent has no rights or legitimate interests in the Disputed Domain Name for the following reasons:
a. The Respondent is not related in any way to the Complainant's business and is not licensed or authorised by the Complainant to use the Disputed Domain Name; and
b. The Respondent has registered the Disputed Domain Name to take advantage of the Complainant's well-known trade mark to confuse and divert Internet users to commercial websites in the field of airline ticket reservations, tourism and travel, through “pay per click” pages.
(3) The Disputed Domain Name was registered and is being used in bad faith because:
a. The Respondent knew or must have known of the trade mark AIR FRANCE KLM which is a famous and well-known trade mark;
a. By registering the Disputed Domain Name, which is very similar to the and domain names registered by the Complainant, the Respondent is clearly trying to divert Internet traffic away from the Complainant's websites;
c. The Respondent owns in excess 177,000 domain names, many which are also confusingly similar to other well-known trade marks. According to the Complainant, the other domain names owned by the Respondent include , , , and ;
d. There have been at least 5 recent UDRP decisions against the Respondent.
The decisions are:
i. Berlitz Investment Corporation v. Ho Nim,WIPO Case No. D2010-0129;
ii. Arla Foods amba v. Ho Nim,WIPO Case No. D2010-0157;
iii. Vanguard Trademark Holdings USA LLC v. Ho Nim, NAF Claim No. 1307551;
iv. The Neiman Marcus Group, Inc. and NM Nevada Trust v. Ho Nim, NAF Claim No. 1305813;
v. The Royal Bank of Scotland Group plc and National Westminster Bank plc v. Ho Nim, NAF Claim No. 1306772;
In the above decisions, the Respondent was ordered to transfer the domain names in dispute;
e. The Respondent uses the Disputed Domain Name to divert Internet users to other webpages containing similar hyperlinks, or to commercial websites in the field of travel or social dating. These hyperlinks divert users away from the Complainant's website and generate revenue for the Respondent through “pay per click” pages. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements in order for the Complaint to succeed:
(1) the Disputed Domain Name is identical with or confusingly similar to a trademark in which the Complainant has rights; and
(2) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(3) the Disputed Domain Name has been registered and is being used in bad faith.
In accordance with paragraph14 (a) of the Rules, if the Respondent does not submit a Response, the Panel shall, in the absence of exceptional circumstances, decide the dispute based on the Complaint. A. Identical or Confusingly Similar
The Complainant is and has been known as Air France - KLM since the announcement of the merger of the two well known airlines in September 2003. It has registered the words AIR FRANCE KLM as a trade mark in several countries, including France and the People's Republic of China. Accordingly, the Panel has no hesitation in finding that the Complainant has rights in the Complainant's Trade Mark.
It is clear to the Panel that the Disputed Domain Name is confusingly similar to the Complainant's Trade Mark. The lack of space between the words “air”, “france” and “klm” is insignificant and does not establish a meaningful difference between the trade mark and the domain name (see for example Société Air France v. Ahmetovnuri, Ahmet Nuri,WIPO Case No. D2006-1527). Similarly, the addition of a gTLD suffix (“.com”) to a domain name does not detract from the conclusion that the Disputed Domain Name is confusingly similar to the Complainant's Trade Mark (see for example Société Air France v. Ali Ferhat Kurtulus Levent Mert/Erdem Yavuz,WIPO Case No. D2004-0759).
It has been held that there is confusing similarity, for the purposes of the Policy, when a disputed domain name wholly incorporates a complainant's mark and only adds a generic word (see for example, F. Hoffmann-La Roche AG v. Bobik Marley,WIPO Case No. D2007-0694). In Corbis Corporation v. Wan-Fu China, Ltd.,WIPO Case No. D2006-1294, it was held that the “addition of the descriptive term describing the Complainant's products and services increases the likelihood that the Domain Name is confusingly similar to the Complainant's trademark.” In the present case, the Complainant operates websites at the domain names and . These websites relate to a commercial service which the Complainant provides to organizers and attendees of travel planning for special events. The words “global meetings” refer to this commercial service of the Complainant. The Disputed Domain Name also has the words “global meetings”. The use of these words in the Disputed Domain Name therefore, does in fact increase the confusing similarity.
The Panel therefore finds that the first element under paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, the Respondent may establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following:
(1) the Respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services before any notice to the Respondent of the dispute; or
(2) the Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or
(3) the Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
As the Respondent failed to file a Response, the Panel does not have before it any evidence of the circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances which might reasonably be said to give to the Respondent a right to or a legitimate interest in the Disputed Domain Name.
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, the 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 Policy (see Société Air France v. Compsys Domain Solutions Private L / D,WIPO Case No. D2008-1212). Here, the Panel finds that the Complainant has made such a prima facie case, which the Respondent has not rebutted.
There is no evidence that the Respondent has been commonly known by any of the elements of the Disputed Domain Name or that he has been carrying on business under or by reference to the name “airfranceklmglobalmeetings” or any element thereof. His website displayed at the Disputed Domain Name merely contains links to other websites and does not relate to any products or services offered by the Respondent. Such use of the Disputed Domain Name has the effect of diverting users away from the Complainant's website and generating revenue for the Respondent through such means as a “pay per click” domain parking solution. In the Panel's view, the Respondent's use of the Disputed Domain Name does not constitute a bona fide offering of goods or services under the Policy and does not also constitute legitimate non-commercial or fair use of the Domain Name. See also Société Air France v. Compsys Domain Solutions Private L / D,WIPO Case No. D2008-1212.
In the circumstances, the Panel finds that the second element under paragraph 4(a)(ii) of the Policy is satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(1) circumstances indicating that the Respondent has registered or have acquired the disputed 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 the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the domain name; or
(2) the Respondent has 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
(3) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(4) the Respondent has, by using the domain name, intentionally attempted to attract, for commercial gain, Internet users to his 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.
By failing to file a Response, the Respondent has failed both to invoke any of the circumstances that could demonstrate that he did not register and use the Disputed Domain Name in bad faith, and to assist the Panel in this regard. In fact, in the Panel's view, the Respondent's refusal and/or failure to file a Response is a relevant factor in determining whether there is bad faith on the part of the Respondent.
Both the Complainant's Trade Mark as well as the marks AIR FRANCE and KLM are well known. This fact, as well as the existence of the marks, must have been known to the Respondent when he registered the Disputed Domain Name. As the panel rightly observed in Digi International Inc. v. DDI Systems, NAF Claim No. 124506, there is “a legal presumption of bad faith, when [the] Respondent reasonably should have been aware of the Complainant's trademarks, actually or constructively”.
It is highly unlikely that the Respondent chose the Disputed Domain Name randomly and without any awareness of the existence and notoriety of the Complainant's Trade Marks. This Panel would add that there is a presumption that when a respondent has chosen or used a domain name which is identical to or nearly identical to a well known trade mark, it did so with the intent to exploit the goodwill and reputation of the mark. The presumption is rebuttable and awaits the respondent's response or explanation as to why or how his domain name came to be registered. In the present case, the Respondent did not submit a Response or offer any explanation, even though he was given the opportunity.
Further, it is apparent that by choosing and using the Disputed Domain Name, the Respondent intentionally attempted, and still attempts, to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Trade Mark as to the source, sponsorship, affiliation or endorsement of the Respondent's website. The Panel further notes the fact that this is not the Respondent's first attempt at exploiting the goodwill and reputation of another's mark; The Respondent appears to have registered at least 177,000 domain names, many which are also confusingly similar to other well-known trade marks, and was recently involved in the following UDRP cases:
i. Berlitz Investment Corporation v. Ho Nim,WIPO Case No. D2010-0129;
ii. Arla Foods amba v. Ho Nim,WIPO Case No. D2010-0157;
iii. Vanguard Trademark Holdings USA LLC v. Ho Nim, NAF Claim No. 1307551;
iv. The Neiman Marcus Group, Inc. and NM Nevada Trust v. Ho Nim, NAF Claim No. 1305813; and
v. The Royal Bank of Scotland Group plc and National Westminster Bank plc v. Ho Nim, NAF Claim No. 1306772
In these cases, as in the present case, the panels found the Respondent's registration and use of the subject domain names to be in bad faith pursuant to Policy, paragraph 4(b)(iv). For instance, in the Neiman Marcus case, the panel found that the Respondent was “using the disputed domain name to intentionally attract Internet users and profit through the receipt of pay-per-click fees”.
In the circumstances, this Panel finds that the Disputed Domain Name was registered and is being used by the Respondent in bad faith. 7. Decision
For all the foregoing reasons, and in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name be transferred to the Complainant.
Tan Tee Jim, S.C.
Sole Panelist
Dated: July 12, 2010
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