The Complainant is Transportes Aeromar, S.A. de C.V. of Mexico City, Mexico, represented by Lex Informática Consultores, Mexico.
The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, Bahamas. 2. The Domain Name and Registrar
The disputed domain name is registered with TLD Registrar Solutions Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 14, 2016. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 27, 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 January 3, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 23, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 24, 2017.
The Center appointed Leticia Caminero as the sole panelist in this matter on January 26, 2017. 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 Transportes Aeromar, S.A. de C.V., a Mexican corporation, owner of several AEROMAR registered trademarks, which have been in use since its incorporation in 1987. Some of the trademark registrations are: AEROMAR (combined mark), and AEROMAR (word mark) in Mexico, as well as, AEROMAR (word mark) in the United States of America. The Complainant is active in the airline industry, presently operating a daily average of 100 flights in Mexico and the United States of America for passengers, cargo, parcel and mail.
The Complainant holds and uses the domain name which was registered in 1999, along with other domain names in 2009, and in 2010.
The Respondent registered the disputed domain name on March 23, 2004. The disputed domain name resolves to a website displaying pay-per-click links. 5. Parties’ Contentions A. Complainant
Firstly, the Complainant states that the disputed domain name is confusingly similar to several of the Complainant’s trademarks AEROMAR. The disputed domain name includes a combination of the Complainant’s trademark with a generic term, which holds a direct relationship to its business, thus adding to the confusing similarity. For this argument the Complainant cited earlier cases, such as The Body Shop International PLC. v. CPIC Net and Syed Hussain,WIPO Case No. D2000-1214, and Gateway, Inc. v. Bellgr, Inc.,WIPO Case No. D2000-0129.
As a second argument, the Complainant declares that the Respondent has no rights or legitimate interests in respect of the disputed domain name, provided that there is no evidence that the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name. Additionally, there is no evidence of the Respondent’s use of the disputed domain name in connection with a bona fide offering of goods or services. The Respondent used the disputed domain name to redirect Internet users to websites offering products and services in competition with the Complainant’s business, by means of pay-per-click links that represented competing products for the Complainant, unauthorized use of the Complainant’s trademark, and several sponsored links to a variety of unrelated sites. The Complainant later quotes Sigikid H. Scharrer & Koch GmbH & Co. KG, MyBear Marketing-und Vertriebs GmbH, Mr. Thomas Dufner v. Bestinfo,WIPO Case No. D2004-0990: “The sole diversion of Internet traffic by the Respondent to other, unrelated websites, does not represent a use of the Domain Name in connection with a bona fide offering of goods and services”.
Thirdly, the Complainant argues that the disputed domain name has been registered and used in bad faith by the Respondent, since the disputed domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the domain name. The Complainant provides evidence of the previous existence of the mentioned offer for sale, which was presented on the Respondent’s website. Moreover, the Complainant states that the technical reason why the disputed domain name cannot be indexed in a search engine is because the Respondent placed a “robots.txt” file in the root directory of “www.”. The use of “robots.txt” has been found to be indicia of bad faith in The iFranchise Group v. Jay Bean / MDNH, Inc. / Moniker Privacy Services [23658],WIPO Case No. D2007-1438.
Furthermore, according to the Complainant by using the disputed domain name the Respondent 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 products). 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 that:
(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.
The Complainant bears the burden of proof on each of these elements. Since the Respondent did not present a response to the Complaint, the Panel may draw appropriate inferences from such a default. However, the Complainant must still support its allegations with actual evidence to succeed in a UDRP proceeding. A. Identical or Confusingly Similar
The Panels finds that disputed domain name is confusingly similar to several of the Complainant’s trademarks AEROMAR. The disputed domain name is a complete reproduction of the Complainant’s trademark AEROMAR, followed by the generic term “airlines” which describes the Complainant’s almost three-decades business, and ending with a generic Top-Level Domain (“gTLD”) “.com”. Consequently, the Panel finds that the additional components do not negate a finding of confusing similarity.
The Panel finds that the requirements of paragraph 4(a)(i) of the Policy have been met by the Complainant. B. Rights or Legitimate Interests
The Panel concludes that there is no evidence that the Respondent before any notice of the present dispute, used, or made demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. Correspondingly, there is no evidence that the Respondent has been commonly known by the disputed domain name.
There is however distinct evidence that the Respondent used the disputed domain name for commercial use via pay-per-click links redirecting to the Complainant’s competitors’ websites, and other non-related webpages. Likewise, the Complainant’s trademark was used on the Respondent’s website without authorization. The Panel interprets these actions as misleading to consumers and as tarnishment of the Complainant’s trademark.
The Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not filed any Response to rebut the Complainant’s prima facie case.
The Panel finds that the requirements of paragraph 4(a)(ii) of the Policy have been met by the Complainant. C. Registered and Used in Bad Faith
The Panel considers that the Respondent knew about Complainant’s trademark AEROMAR before the registration of the disputed domain name. Based on the use of the Respondent’s website with the purpose of intentionally attempting to attract, for commercial gain, Internet users to the disputed domain name’s website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the website, the Panel finds that the disputed domain name was registered and is being used in bad faith.
The Panel finds that the requirements of paragraph 4(a)(iii) of the Policy have been met by the Complainant. 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.
Leticia Caminero
Sole Panelist
Date: February 8, 2017
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