The Complainant is Société Air France of Roissy, France, represented by MEYER & Partenaires, France.
The Respondent is Ubeyd Negor of Istanbul, Turkey. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with eNom, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 3, 2016. On October 5, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On October 5, 2016, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 19, 2016. In accordance with the Rules, paragraph 5, the due date for Response was November 8, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 10, 2016.
The Center appointed Douglas M. Isenberg as the sole panelist in this matter on November 21, 2016. 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 states that it is “a French airline passenger and freight company known as one of the largest in the world”; that it has “a fleet of 583 airplanes [and] serves 231 cities in 103 countries and represents 1500 flights everyday”; that it was “born on October 7, 1933”; that it operates a website using the domain name ; and that it “has also registered or obtained the transfer many generic top-level domain names consisting of or incorporating the trademark AIR FRANCE” (defined below).
The Complainant states, and provides evidence to support, that it is the owner of a number of trademark registrations for the mark AIR FRANCE, including International Registration No. 828,334 (registered October 20, 2003); and International Registration No. 1,123,935 (registered May 25, 2012). These registrations are referred to hereafter as the “AIR FRANCE Trademark”.
The Disputed Domain Name was created on November 23, 2015, and is being used in connection with a website that contains links for what appear to be travel-related services and also a redirection to a travel website. The Complainant states that the Disputed Domain Name is used in connection with “a pay-per-click ‘link farm’ to host sponsored links related to the Complainant’s field of business. Several of these links resolve competitor’s commercial websites”. 5. Parties’ Contentions A. Complainant
The Complaint contends, in relevant part, as follows:
- The Disputed Domain Name is confusingly similar to the AIR FRANCE Trademark because, inter alia, “the radical of the domain name AIRFRANCE.CHEAP, which reproduces letter-by-letter Complainant’s trademarks, is identical to the said trademarks”; “the mere addition of a top-level domain to a well-known trademark does not give any distinctive character to the domain name, nor avoid confusing similarity”; “the TLD ‘.CHEAP is also a word… that might easily be associated with the Complainant’s activities”; and “the domain name is also confusingly similar to the domain name , used since years by complainant as a worldwide portal”.
- The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because, inter alia, “UBEYD NEGOR is not related in any way to the Complainant’s business: he is not one of its agents and do not carry out any activity for, or have any business with it”; “Respondent is not currently and has never been known under the wording AIRFRANCE or AIR FRANCE or any of their potential combination”; and “[n]o license or authorization has been granted to the Respondent to make any use or apply for registration of the domain name AIRFRANCE.CHEAP”.
- The Disputed Domain Name was registered and is being used in bad faith because, inter alia, “[i]t is obvious that Respondent has registered AIRFRANCE.CHEAP precisely because they knew the well-known character of the trademark ‘AIR FRANCE’ and the significant online traffic related to the topic of air travel”; “us[ing] the disputed domain name to activate a parking web page promoting various commercial services” constitutes bad faith, “especially when the trademark at stake have the potential to generate web traffic”; and “one cannot exclude that an Internet user will be confused into thinking that there is some kind of connect ion between the Complainant and the activated website”. B. Respondent
The Respondent sent an email communication to the Center on November 23, 2016 regarding the expiry of the Disputed Domain Name stating that “It will be stay active. Thanks”. However, the Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to the Policy, the Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) the Disputed Domain Name has been registered and is being used in bad faith. Policy, paragraph 4(a). A. Identical or Confusingly Similar
Based upon the trademark registrations cited by the Complainant, it is apparent that the Complainant has rights in and to the AIR FRANCE Trademark. This is consistent with previous decisions under the Policy. See, e.g., Société Air France v. WhoisGuard Protected, WhoisGuard, Inc. / Muhammad Faisal,WIPO Case No. D2016-1935 (transfer of ).
As to whether the Disputed Domain Name is identical or confusingly similar to the AIR FRANCE Trademark, the relevant comparison to be made is with the second-level portion of the domain name only (i.e., “airfrance”), as it is well established that the Top-Level Domain (i.e., “.cheap”) may generally be disregarded for this purpose. See the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.2 (“[t]he applicable top-level suffix in the domain name (e.g., ‘.com’) would usually be disregarded under the confusing similarity test (as it is a technical requirement of registration), except in certain cases where the applicable top-level suffix may itself form part of the relevant trademark”).
The Disputed Domain Name contains the AIR FRANCE Trademark in its entirety, absent the space that appears in the trademark, which cannot be reproduced in a domain name. Therefore, it is apparent without the need for elaboration, that the Disputed Domain Name is identical or confusingly similar to the AIR FRANCE Trademark.
Accordingly, the Panel finds that the Complainant has proven the first element of the Policy. B. Rights or Legitimate Interests
The Complainant has argued that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name because, inter alia, “UBEYD NEGOR is not related in any way to the Complainant’s business: he is not one of its agents and do not carry out any activity for, or have any business with it”; “Respondent is not currently and has never been known under the wording AIRFRANCE or AIR FRANCE or any of their potential combination”; and “[n]o license or authorization has been granted to the Respondent to make any use or apply for registration of the domain name AIRFRANCE.CHEAP”.
Under the Policy, “a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP”. WIPO Overview 2.0, paragraph 2.1.
The Panel finds that the Complainant has established its prima facie case and without any evidence from the Respondent to the contrary, the Panel is satisfied that the Complainant has satisfied the second element of the Policy. C. Registered and Used in Bad Faith
Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the respondent has registered or the respondent has acquired the 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 that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) 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 (iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s website or other online 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. Policy, paragraph 4(b).
In this case, the Complainant in effect argues that bad faith exists pursuant to Policy paragraph 4(b)(iv), for the reasons set forth above.
Numerous panels have found the registration and use of a domain name that is confusingly similar to a complainant’s trademark to constitute bad faith pursuant to paragraph 4(b)(iv) of the Policy where, as here, the domain name is associated with monetized parking pages that contain links for goods or services related to the complainant. See, e.g., Wal-Mart Stores, Inc. v. Whois Privacy, Inc.,WIPO Case No. D2005-0850; Columbia Pictures Industries, Inc. v. North West Enterprise, Inc.,WIPO Case No. D2006-0951; and Dr. Martens International Trading GmbH, Dr. Maertens Marketing GmbH v. Private Whois Service,WIPO Case No. D2011-1753.
Accordingly, the Panel finds that the Complainant has proven the third element of the Policy. 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 Disputed Domain Name be transferred to the Complainant.
Douglas M. Isenberg
Sole Panelist
Date: November 28, 2016
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