The Complainant is Austrian Airlines AG of Vienna, Austria, represented internally.
The Respondent is Protection Domain of Panama City, Panama. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Domain Mantra, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 25, 2014. On September 25, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 29, 2014, the Registrar 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 October 15, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 4, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 5, 2014.
The Center appointed Wolter Wefers Bettink as the sole panelist in this matter on November 11, 2014. 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 an airline company, founded in 1957, based in Austria and providing air transportation services within Europe and to North America and several countries in Asia. The Complainant is the registered owner of several Austrian, Community, US and international trade marks containing the name AUSTRIAN AIRLINES, including:
- Austrian national registration AUSTRIAN AIRLINES and Design (registration No. 68168), registered on January 4, 1971;
- Austrian national registration AUSTRIAN AIRLINES and Design (registration No. 164554), registered on June 5, 1996;
- US registration word mark AUSTRIAN AIRLINES (registration No. 2546433), registered on March 12, 2002;
- Community trade mark AUSTRIAN AIRLINES (registration No. 010231405), registered on January 2, 2012.
These trade marks are referred to below as the Trade Marks.
The Domain Name has been registered by the Respondent on July 14, 2014. The Domain Name originally resolved to a website containing hyperlinks to other websites selling airline tickets. At present the website under the Domain Name contains a text criticizing the Complainant's services. 5. Parties’ Contentions A. Complainant
According to the Complainant, the Domain Name is confusingly similar with the Trade Marks, as the element AUSTRIAN AIRLINES is the dominant part both of the Domain Name and the Trade Marks.
The Complainant claims to have been the holder of the Domain Name for more than 10 years, but, due to an employee’s mistake, the Domain Name registration was not renewed in time and the Domain Name was subsequently registered by the Respondent. After registration, the Complainant sent a demand letter to the Respondent to which it did not receive a response, the Complainant submits.
The Complainant states that the Respondent does not have rights or legitimate interests in respect of the Domain Name. There is no evidence of the Respondent’s use of or demonstrable preparations to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services. There is no evidence that the Respondent has been commonly known by the Domain Name, nor that it has acquired any trade mark or service mark rights, the Complainant submits. Furthermore, the Complainant states that the Respondent, by connecting the Domain Name to a website containing links to websites selling airline tickets competing with the tickets sold on the website of the Complainant is not making a noncommercial, or fair use of the Domain Name, but instead intends for commercial gain to mislead and divert customers to its website. Furthermore, the Domain Name is currently linked to a website which contains, inter alia, the following text:
“Austrian Airlines sucks!
Do not fly Austrian Airlines!
Inept and unhelpful Customer Service Representatives. Excessive and unfair charges. The Customer reps do not help, they just quote policy over and over.
[…]
This site is dedicated to all those that have been wronged by Austrian Airlines.
[…]
Please help spread the cause, link to A on your website or blog with the Anchor Text ‘sucks’.”
According to the Complainant, the Respondent hereby is tarnishing the Trade Marks which enjoy a high international reputation.
According to the Complainant, the Respondent must have had actual knowledge of the Trade Marks as the Complainant is an internationally well-known air carrier and has been operating its flights worldwide for several decades. The Complainant has been present on the Internet under several domain names reflecting the Trade Marks for many years. The Complainant puts forward that also the fact that the Respondent registered the Domain Name immediately after it came up for renewal and was then connected to a website with links to websites offering airline tickets for sale shows that the Respondent when registering the Domain Name was aware of the Trade Marks and therefore registered the Domain Name in bad faith.
Furthermore, by acquiring the Domain Name the Respondent intentionally attempted to attract for financial gain Internet users to the Respondent’s website, by creating a likelihood of confusion with the Trade Marks as to the products and services offered on the Respondent’s website. The Complainant also submits that, by using the Domain Name and by using the Trade Marks, the Respondent evokes to Internet user the impression that the website is hosted, registered and used by the Complainant for selling tickets at discounted international airfares. Finally, by using the Domain Name for a website containing the caption “Austrian Airlines Sucks” the Respondent according to the Complainant tries to force the Complainant to buy the Domain Name in order to be able to remove these allegations. This shows in the opinion of the Complainant that the Respondent registered the Domain Name only for the purpose of selling it to the Complainant for an amount in excess of out-of-pocket registration costs. These circumstances show that the Domain Name is being used in bad faith, the Complainant submits. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has shown that it has rights in the Trade Marks. The Trade Marks consist of or contain as dominant element the name AUSTRIAN AIRLINES. Likewise, the main element of the Domain Name is AUSTRIAN AIRLINES. Therefore, the Domain Name and the Trade Marks are identical or, in any case, confusingly similar. B. Rights or Legitimate Interests
The Complainant has to make out a prima facie case that the Respondent does not have rights or legitimate interests in the Domain Name (WIPO Overview of WIPO Panel views on selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.1). Based on the evidence and the undisputed submissions of the Complainant, the Panel concludes that the Respondent is not commonly known by the Domain Name and has not acquired trade mark rights to the Domain Name. The use of the Domain Name for a parking website containing links to websites offering services competing with those of the Complainant cannot be considered noncommercial or fair use of the Domain Name. The Panel is of the opinion that the recent change to a website criticizing the Complainant and its services does not provide a legitimate interest either. It is generally held in UDRP case law that use of a domain name for a criticism website may provide a legitimate interest, provided the website practices genuine noncommercial criticism (WIPO Overview 2.0, paragraph 2.4). Given the previous use of the website as a commercial parking website and the change to the current website, apparently after receiving a demand letter from the Complainant, as well as the fact that the criticism is not supported on the website by any facts or actual experiences with the Complainant or its services, the current website under the Domain Name, in the opinion of the Panel, cannot be considered a genuine criticism website. Rather, also in view of the Panel’s considerations under the next heading of this Decision, such use appears to have been an attempt to hide the Respondent’s bad faith registration and use of the Domain Name.
For all the foregoing reasons, the Panel concludes that the Respondent does not have a right or legitimate interest in the Domain Name. C. Registered and Used in Bad Faith
In view of the reputation of the Complainant as an international airline, active since 1957, it is likely that the Respondent when registering the Domain Name in July 2014 was aware of the Trade Marks. This is confirmed by the fact that the Domain Name was registered upon the Complainant inadvertently letting the Domain Name lapse after use for more than a decade. The Respondent’s awareness of the Complainant and the Trade Marks is also supported by the fact that until recently the Domain Name was connected to a parking website with hyperlinks to websites offering services competing with those of the Complainant. In this context, it is in the opinion of the Panel irrelevant whether the registration of the Domain Name by the Respondent was done directly by the Respondent, through a Privacy Service provider and/or on the basis of a contract with a service provider using automated means to obtain registration of desired domain names immediately upon an eventual lapse of their registration. After all, the Respondent is the ultimate holder of the Domain Name and therefore responsible for the manner in which the Domain Name was registered. Therefore, the Panel concludes that the Domain Name was registered in bad faith.
The use of the Domain Name for a website containing links to websites offering competing services to those of the Complainant tends to show that the Respondent acquired the Domain Name intentionally to attract, for commercial gain, Internet users to the website connected to the Domain Name, by creating a likelihood of confusion with the Trade Marks as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or of a product or service on the Respondent’s website. The subsequent use for a non-genuine criticism website shows, in the opinion of this Panel, that the Respondent uses the Domain Name to tarnish the reputation of the Trade Marks. On the basis of the above the Panel concludes that the Domain Name is also being used in bad faith. 7. Decision
For 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.
Wolter Wefers Bettink
Sole Panelist
Date: November 25, 2014
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