The Complainant is WestJet Airlines Ltd. of Calgary, Alberta, Canada, represented by Gowlings WLG (Canada) LLP, Canada.
The Respondent is Domain May Be For Sale Check Afternic.Com Domain Admin of Praha, Czech Republic / Hulmiho Ukolen, Poste restante of Helsinki, Finland. 2. The Domain Name and Registrar
The disputed domain name is registered with Gransy, s.r.o. d/b/a (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 16, 2018. On October 17, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 18, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 19, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on the same day.
The Center verified that the Complaint together with the amended 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 26, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 15, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 16, 2018.
The Center appointed Luis Miguel Beneyto Garcia-Reyes as the sole panelist in this matter on November 21, 2018. 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 following facts must be taken into account in the case at hand.
The Complainant, Westjet Airlines Ltd is a Canadian leading airline founded in 1996 that provides scheduled and charter air service to more than 100 destinations in North America, Central America, the Caribbean.
The Complainant operates through the domain name .
The WESTJET trademark can be considered as well-known in the field of airlines.
The Complainant is the owner of several Canadian WESTJET registrations (including trademark registration no. TMA480424, registered on August 14, 1997). The mark is also protected in the European Union (“EU”) and other non-EU iurisdictions like Singapore, Hong Kong, China and the Republic of Korea.
The disputed domain name was registered on November 5, 2009, and it is listed for sale at a price of USD 9,990
The Respondent has used the disputed domain name by including on the corresponding website several links to competitors of the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant was founded in 1996 and it’s a leading international airline company that currently offers scheduled service to more than 100 destinations in North America, Central America, the Caribbean and Europe and to more than 175 destinations in over 20 countries through its airline partnerships.
The WESTJET trademarks enjoys a great reputation as a result of extensive use and publicity since at least as early as February 1996,and as a consequence of said use the WESTJET trademarks have become famous.
The Complainant is the owner of the Canadian registrations, including, without limitation, WESTJET (registration no. TMA480424, registered on August 14, 1997), WESTJET (registration no. TMA651001, registered on October 20, 2005); the EU Trademark registrations WESTJET (registration no. 012810289, registered on November 7, 2014), WESTJET & Design (registration no. 12817839, registered on April 21, 2015); the Singapore registration WESTJET (registration no. 40201701221Y, registered on January 18, 2017); the Hong Kong registration WESTJET (registration no. 304026159, registered on January 19, 2017) and the Republic of Korea registration WESTJET (registration no. 40-1340636, registered on March 14, 2018).
The disputed domain name is confusingly similar with the WESTJET trademarks in which the Complainant has rights, as it incorporates the whole of the WESTJET trademark. The confusion is enhanced by the addition of the term “agent”. Consumers are likely to be confused into believing that the disputed domain name is affiliated with, or otherwise connected to, the Complainant.
The Respondent lacks of any rights or legitimate interests in the disputed domain name as there is no evidence to suggest that the Respondent has ever used, or demonstrated preparations to use the disputed domain name in connection with a bona fide offering of goods or services and there has never been any relationship between the Complainant and the Respondent which has never been licensed or authorized to register or use, the WESTJET trademark in any manner including as part of a domain name. Also, there is no evidence to suggest that the Respondent has been commonly known by the disputed domain name.
The Respondent acquired the disputed domain name for the purpose of selling, renting, licensing or otherwise transferring them to the Complainant for valuable consideration in excess of its actual costs in registering the disputed domain name as it is actively promoting the sale of the disputed domain name for USD 9,990, which shows that the Respondent acted in bad faith.
The Respondent registered the disputed domain name for the purpose of disrupting the business of the Complainant and it is being used in an attempt to intentionally attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement, given that the disputed domain name resolves to a pay-per-click website featuring link titles that overlap with the Complainant’s field of activity, as well as sponsored links to competitors of the Complainant, which are also circumstances that accredit that the disputed domain name has been used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The WESTJET trademark is undeniably confusingly similar to the disputed domain name .
The presence of the word “agent” in the disputed domain name in no way suffices to prevent the two from being confusingly similar, particularly considering that “agent” is a common term that means a person who acts on behalf or another person or group, so it cannot prevent a finding that the disputed domain name and the Complainant’s trademark are not confusingly similar.
The Panel therefore regards compliance with the first requirement set out in paragraph 4(a) of the Policy to have been proven. B. Rights or Legitimate Interests
The Respondent has not replied to the Complaint and, consequently, there is no way to get its version regarding the possible existence of rights or legitimate interests in the disputed domain name.
Nevertheless, after examining the case file and considering all the facts and circumstances on record in the file, the Panel has determined that no evidence has been submitted to show that the Respondent may have been commonly known by the disputed domain name, has 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, or is making a legitimate noncommercial or fair use of the disputed domain name, without intent to misleadingly divert consumers for commercial gain or to tarnish the trademark WESTJET. In Fact, considering the use of the disputed domain name and the circumstances of the case, the Panel finds that the Complainant has proved a prima facie case.
Additionally, the Respondent’s failure to reply to the Complaint in this case makes the Complainant’s prima facie case unrebutted. This same finding has been made in previous UDRP decisions, for instance, Montes De Piedad Y Cajas de Ahorro De Ronda, Cádiz, Málaga, Almería Y Antequera (Unicaja)) v. Fernando Labadía Pardo,WIPO Case No. D2000-1402, Promoconcert S.L. v. Katarzyna Wolosz,WIPO Case No. D2014-1150 and Distribution Leader Price SNC v. Magna Solution,WIPO Case No. D2016-1879.
Consequently, the Panel finds that the second requirement laid down in paragraph 4(a) of the Policy has likewise been fulfilled. C. Registered and Used in Bad Faith
The Panelist considers that the evidence submitted by the Complainant clearly suffices to support the conclusion that there has been bad faith on the part of the Respondent. In this regard the following circumstances, particularly, should be taken into account:
First of all, it has been proved that WESTJET enjoys a remarkable reputation in the sector of airlines, and that there are numerous registrations of the WESTJET trademarks in several jurisdictions, the EU among them, where the Respondent is addressed (Czech Republic). In this light it may be concluded that it is not plausible that the disputed domain name may be the consequence of an independent act of creation on the part of the Respondent, who must have been fully aware that a third party already held rights in the trademark WESTJET.
The Panel therefore takes the view that the disputed domain name was registered in bad faith.
The Panel will now turn to the question of possible bad faith on the part of the Respondent in the use of the disputed domain name. In this regard, it is to be noted that in the decision in the case of J.Garcia Carrion S.A v. Mª Jose Catalan Frias,WIPO Case No. D2000-0239, which was followed by many others, such as Distribution Leader Price SNC v. Magna Solution, supra, it was observed that:
“… there would appear to be no doubt that whoever has registered a domain name in bad faith and without a legitimate interest will also be using it in bad faith, as any other interpretation would be entirely contradictory. Whoever acts in bad faith in registering a domain name will use it in bad faith, given that the bad faith is linked to the knowledge he had at the time of registration that he was causing detriment, without due cause, to the rights of a third party.”
Additionally, it must be taken into account that the website at the disputed domain name included various links to competitors of the Complainant. That fact, confirms that WESTJET was a trademark known by the Respondent, also can be considered as a proof that the disputed domain name has been used in an attempt to intentionally attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark in respect to source, sponsorship, affiliation or endorsement. That conclusion becomes more evident considering the inclusion in the disputed domain name of the term “agent” together with the Complainant’s trademark, not having the Respondent ever been a real “agent” of the Complainant in accordance to the unrebutted arguments and proofs submitted by the Complainant.
This Panel therefore takes the view that the conduct of the Respondent also exhibits bad faith with respect to use and consequently concludes that the requirement of paragraph 4(a)(iii) of the Policy is met. 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.
Luis Miguel Beneyto Garcia-Reyes
Sole Panelist
Date: December 12, 2018
Full & Egal Universal Law Academy