The Complainant is Comair Ltd, Bonaero Park, South Africa, represented by Adams & Adams Attorneys, South Africa.
The Respondent is Kevin Wall, Grand Cayman Cayman Island, an Overseas Territory of the United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 29, 2012. On May 29, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 29, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of the Domain Name and providing the contact details for the Respondent.
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 7, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was June 27, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 29, 2012.
The Center appointed William P. Knight as the sole panelist in this matter on July 9, 2012. 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
Since 2001, when the Complainant launched the first budget airline in South Africa, it has carried on business as an air carrier and providing related services, first in South Africa and then further afield in the African continent, under the mark KULULA. “kulula” is a Zulu and Xhosa word meaning “it’s easy” or “easily”. The Complainant has achieved an even wider reputation, however, as a consequence of its innovative marketing, including its “Flying 101” aircraft livery. The Complainant has numerous trademark registrations in the South Africa and other African nations incorporating the word “kulula” respect of air transportation and travel-related services, dating from 2001. It also has registered numerous domain names including the word “kulula”. The Complainant is a subsidiary of a long-established South African airline, known as Comair.
The Domain Name was registered to the Respondent on March 29, 2011. The Respondent’s website purports to be a description of the Complainant and its history, and includes what appears to be a notice board or blog function for visiting users, although many users have reason to refer to and provide links to other service providers, including at least one other airline and even a South African travel agent’s website, which of course offers services competing with those offered by the Complainant. In fact, the blogs give every appearance of being fictitious. 5. Parties’ Contentions A. Complainant
In accordance with paragraph 4(a) of the Policy, the Complainant asserts:
(i) that the Domain Name is confusingly similar to its KULULA trademark;
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name;
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant says that the addition of the word “specials” in the Domain Name does nothing to distinguish the dominant element of the Domain Name, namely the word “kulula”.
The Complainant says that a conclusion may be drawn that the Respondent has no rights or legitimate interests in respect of the Domain Name from the Respondent’s failure to respond to a letter of demand dated sent by email to him on April 16, 2012 by the Complainant’s attorneys, as well as to a subsequent email.
The Complainant further says that the Respondent must have been aware of the Complainant’s reputation before registering the Domain Name by virtue of the use of the Domain Name to point to a web page describing the Complainant and hence the choice of the Domain Name by the Respondent could not have been an accident. The Complainant says that the use of the Domain Name to point to a website that redirects internet users to service providers other than and sometimes competing with the Complainant cannot demonstrate a legitimate interest in the Domain Name.
For the same reasons, the Complainant argues that the Respondent’s registration and use of the Domain Name must be found to be in bad faith, in the sense intended by the Policy.
The Complainant requests transfer of the Domain Name to it, in accordance with the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy.
However, the Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. The Respondent cannot be in a better position by failing to respond than if he had chosen to take advantage of the opportunities afforded to him, expressly, by paragraph 4(c) of the Policy.
Paragraph 15(a) of the Rules instructs the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. In the absence of any response from the Respondent, the onus upon the Complainant will be satisfied if a conclusion which is capable of being drawn from the evidence provided by the Complainant is not contradicted by the Respondent; see Alcoholics Anonymous World Services, Inc., v. Lauren Raymond,WIPO Case No. D2000-0007; RonsonPlc v. UnimetalSanayiveTic.A.S.,WIPO Case No. D2000-0011 among numerous other UDRP decisions. The Panel may, also, supplement the submissions of the Complainant with matters of public record that are readily available to it, such as an inspection of the website, if any, in respect of which the domain name the subject of the dispute is used; see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) paragraph 4.5. A. Identical or Confusingly Similar
As to element (i) of paragraph 4(a) of the Policy, the Panel notes that the determination of confusing similarity is a factual one which must be satisfied by making a side-by-side comparison of the Complainant’s trademark KULULA and the Domain Name, taking into account the degree of aural, visual, or conceptual similarity between the two, the similarity of the goods and services for which they are used and the inherent or acquired distinctiveness of the trademark, as well as issues relevant to language; see Tchibo Frisch-Röst-Kaffee GmbH v. Hans Reischl,WIPO Case No. D2001-0079.
Placed side-by-side, the similarity of the KULULA trademark and the Domain Name is self-evident. The word “kulula” is a known word in the Zulu and Xhosa languages of South African, but not in other languages of the African continent, and is otherwise very unusual. There is no reason to suppose the word cannot become a trademark through extensive use, as has occurred in South Africa at least, in the same way that “EasyJet” or “United” have become trademarks in other jurisdictions, through extensive use and effective marketing. The word even in Zulu and Xhosa is no more than indirectly descriptive, or evocative, in the same way as these trademarks. The addition of the generic word “specials” does nothing to distinguish the Domain Name, and only tends to emphasize that any likely use made of the Domain Name would target those interested in the budget airline services offered by the Complainant.
The Panel therefore finds that the Complainant has sufficient trademark rights and that the Domain Name is confusing similar to the Complainant’s KULULA trademark. B. Rights or Legitimate Interests
In the absence of any explanation from the Respondent, and the actual use of the Domain Name made by the Respondent, it defies credulity that the Respondent was unaware of the Complainant, its business and its reputation arising from its increasing success.
It is established, of course, that the use of a domain name for the purpose of providing genuine commentary on, or criticism of, a trademark owner, such as so-called “fan sites” and “sux sites”, may demonstrate a legitimate interest in the domain name. Such use fall squarely under the express terms of paragraph 4(c)(iii) of the Policy as a “legitimate noncommercial 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” and there are many examples of this; see WIPO Overview 2.0, sections 2.4 and 2.5. In this case, however, the information on the Respondent’s website is nothing more than a bland repetition of publicly available information regarding the Complainant (other than the curious gaffe of stating that the Complainant is a subsidiary of British Airlines, which only serves to show that no real thought has gone into this text) and the blog entries would appear to be fictitious, each comment having the most attenuated connection imaginable to the Complainant and the information provided regarding the Complainant, as well as being tendentious, having no other purpose than to introduce a link to some other service provider, from which the Respondent no doubt derives click-through revenue.
In such circumstances, and given the use made of the Domain Name by the Respondent, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registration and Use in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances that may indicate registration and use in bad faith. Paragraph 4(b)(iv) of the Policy provides that evidence of the registration and use of a domain name in bad faith includes “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product or service on your web site or location”.
In light of comments made above, the Panel considers that paragraph 4(b)(iv) perfectly describes both the registration and use of the Domain Name by the Respondent.
In these circumstances, the Panel concludes that the Domain Name was registered and is being used in bad faith. 7. Decision
In the light of the findings in paragraph 6 above, the Panel accordingly determines in accordance with paragraph 15 of the Rules that the Domain Name be transferred to the Complainant in accordance with paragraph 4(i) of the Policy.
William P. Knight
Sole Panelist
Dated: July 23, 2012
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