The Complainant is Société Air France of Roissy, France, represented by MEYER & Partenaires, France.
The Respondent is Ebills Online Services of Rio Lerma, Mexico. 2. The Domain Name and Registrar
The disputed domain name (“the Domain Name”) is registered with Rebel Ltd (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 24, 2018. On October 24, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 25, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the 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 30, 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 October 31, 2018.
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 November 5, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 25, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 26, 2018.
The Center appointed John C. McElwaine as the sole panelist in this matter on December 4, 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 Complainant is the French airline passenger and freight company Société Air France. The company was founded in 1933 and is known as one of the largest airline companies in the world. With a fleet of 583 airplanes, Air France serves 231 cities in 103 countries and makes 1,500 flights every day.
The Complainant owns International Trademark Registration No. 828334 for the trademark AIR FRANCE designating over 50 countries worldwide. In addition, the Complainant owns a Mexican national trademark registration for the mark AIR FRANCE (Reg. No. 1332176), which is the country in which the Respondent is located.
In addition to the aforementioned trademark registrations, since 2004, the Complainant has owned the domain name and has continuously and actively operated the Complainant’s website through which the Complainant provides information about itself, its products and services, and provides consumers with the ability to book airline flight reservations. The Complainant also owns and operates the domain name to operate a local website to advertise and provide the Complainant’s services specifically to consumers in Mexico.
The Panel believes that the Amended Complaint contains a typo regarding the date of registration for the Domain Name. The Amended Complaint states that the date of registration for the Domain Name is January 22, 2018; however, the evidence of record indicates that the Domain Name was registered on January 22, 20 08, namely, as evidenced by the WhoIs record for the Domain Name submitted by the Complainant and as indicated by the Complainant in its cease and desist letter and email to the Respondent. Accordingly, the Panel finds that the date of registration of the Domain Name is in fact January 22, 2008.
The Domain Name resolves to parked webpage featuring advertisements for the Complainant’s products and services as well as the products and services of the Complainant’s competitors. Furthermore, while not argued in the Complaint, the Panel takes notice from the evidence of record submitted by the Complainant that the website hosted at the Domain Name also contains a link listing the Domain Name is for sale.
On June 11, 2018, the Complainant sent a cease and desist letter to the Respondent. The Respondent never provided the Complainant with a response. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name should be transferred to the Complainant because each of the three elements required in paragraph 4(a) of the Policy has been established.
With respect to the first element of the Policy, the Complainant alleges to own a trademark for AIR FRANCE for, among other things, airline passenger and freight services, and has used the AIR FRANCE mark since at least as early as 1933. The Complainant further contends that the AIR FRANCE trademark is internationally well-known as evidenced by, among other things, previous WIPO UDRP decisions which find the Complainant’s AIR FRANCE trademark to be well-known. See Société Air France v. Whois Privacy Corp.,WIPO Case No. D2017-2143; Société Air France v. PrivacyDotLink Customer 559587 / Alan Wolach,WIPO Case No. D2016-0802; Société Air France v. Spiral Matrix,WIPO Case No. D2005-1337; Société Air France v. Alvaro Collazo,WIPO Case No. D2003-0417; Société Air France v. Kitchkulture,WIPO Case No. D2002-0158; and Société Air France v. Van Wijk & Mesker Holding BV, WIPO Case No. D2002-0028. Lastly, the Complainant points out that the AIR FRANCE trademark is fully included in the Domain Name and is different only by the addition of the letter “s”.
With respect to the second element of the Policy, the Complainant alleges that the Respondent does not have any rights or legitimate interests in the Domain Name because the Respondent is not an agent for the Complainant’s business, there is no evidence that the Respondent is commonly known by the name “Air France,” and that the Respondent is not a licensee of the AIR FRANCE trademark nor does the Respondent have authorization from the Complainant to use the AIR FRANCE trademark. The Complainant further asserts that the Respondent is using the Domain Name to resolve to a website that uses the AIR FRANCE trademark in connection with a website featuring sponsored advertisements and that the sponsored advertisement links impersonate the Complainant or purport to offer airline ticket reservation services for the Complainant or the Complainant’s competitors. Lastly, the Complainant asserts that such use of a confusingly similar domain name to divert traffic to the Respondent’s website is not a bona fide offering of goods or services nor is it a legitimate noncommercial or fair use.
With respect to the third element of the Policy, the Complainant alleges that the Respondent registered and is using the Domain Name primarily to profit from and exploit the Complainant's well-known AIR FRANCE trademark. In particular, the Complainant avers that the Respondent is using the Domain Name to drive Internet users to the parked webpage hosted at the Domain Name, which features pay-per-click advertisements for goods and services of both the Complainant and the Complainant’s competitors, for which the Respondent presumably receives click-through fees, and a link advertising the Domain Name is for sale, and such use constitutes bad faith registration and use of the disputed domain name under the Policy, paragraph 4(b)(iv). In addition, the Complainant alleges that the Respondent knowingly registered the Domain Name containing an exact reproduction of the well-known AIR FRANCE mark with the addition of an “s” to capitalize on consumer recognition of the AIR FRANCE mark and that such “typosquatting” evidences bad faith under the Policy, paragraph 4(a)(iii). Lastly, the Complainant claims that the Respondent has engaged in a pattern of conduct of registering domain names corresponding to well-known trademarks, as evidenced by the prior existing UDRP decisions adverse to the Respondent and the domain names currently registered to the Respondent. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Even though the Respondent has defaulted, paragraph 4 of the Policy requires that, in order to succeed in this UDRP proceeding, the Complainants must still prove their assertions with evidence demonstrating:
(i) the 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 Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
Because of the Respondent’s default, the Panel may accept as true the reasonable factual allegations stated within the Complaint, and may draw appropriate inferences therefrom. See St. Tropez Acquisition Co. Limited v. AnonymousSpeech LLC and Global House Inc.,WIPO Case No. D2009-1779; Bjorn Kassoe Andersen v. Direction International,WIPO Case No. D2007-0605; see also paragraph 5(f) of the Rules (“If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint”). Having considered the Complaint, the Policy, the Rules, the Supplemental Rules and applicable principles of law, the Panel’s findings on each of the above cited elements are as follows. A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires the Complainant show that the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.2.1. Here, the Complainant has provided evidence of ownership of registrations for the mark AIR FRANCE worldwide, including International Registration No. 828334, which designates over 50 countries, and Mexico Registration No. 1332176. The Panel finds that the Complainant owns valid trademark rights in the AIR FRANCE trademark and said rights predate the registration of the Domain Name.
The Domain Name is virtually identical to the AIR FRANCE trademark but for the addition of the letter “s” creating a plural version of the AIR FRANCE trademark. The addition of the letter “s” does not distinguish the Domain Name from the AIR FRANCE trademark and is a common form of typosquatting. See ESH Strategies Branding, LLC v. Kumpol Sawaengkarn,WIPO Case No. D2011-0843 (the addition or subtraction of the letter “s” from a name is a common mistake Internet users make, and therefore, constitutes typo squatting).
Accordingly, the Panel finds that the Domain Name is confusingly similar to the Complainant’s AIR FRANCE trademark in which the Complainant has valid trademark rights. Therefore, the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Under the Policy, paragraph 4(a)(ii), the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in the Domain Name. The Complainant needs only make a prima facie showing on this element, at which point the burden of production shifts to the Respondent to present evidence that it has rights or legitimate interests in the Domain Name. If the Respondent has failed to do so, the Complainant is deemed to have satisfied its burden under paragraph 4(a)(ii) of the Policy. See Vicar Operating, Inc. v. Domains by Proxy, Inc. / Eklin Bot Systems, Inc.,WIPO Case No. D2010-1141; see also Nicole Kidman v. John Zuccarini, d/b/a Cupcake Party,WIPO Case No. D2000-1415; Inter-Continental Hotels Corporation v. Khaled Ali Soussi,WIPO Case No. D2000-0252.
The Policy, paragraph 4(c), provides a non-exhaustive list of circumstances in which a respondent could demonstrate rights or legitimate interests in a contested domain name:
“(i) before any notice to you of the dispute, your 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; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making 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.”
With respect to the Complainant’s contention that the Respondent is not commonly known by the Domain Name, the Panel notes that the WhoIs information lists the Respondent as “Ebills Online Services” and the Panel therefore finds, based on the record and the lack of evidence otherwise, that the Respondent is not commonly known by the Domain Name. See Moncler S.p.A. v. Bestinfo,WIPO Case No. D2004-1049 (“the Panel notes that the Respondent’s name is “Bestinfo” and that it can therefore not be “commonly known by the Domain Name.”)
As it pertains to the Complainant’s contentions that the Complainant has never licensed or otherwise provided authorization for the Respondent to use the AIR FRANCE trademark and the Respondent is not an agent of the Complainant, although the Respondent has been properly notified of the Complaint by the Center, the Respondent failed to submit any response on this point. The silence of a respondent may support a finding that it has no rights or legitimate interests in respect of the domain name. See Alcoholics Anonymous World Services, Inc., v. Lauren Raymond,WIPO Case No. D2000-0007; Ronson Plc v. Unimetal Sanayi ve Tic.A.S.,WIPO Case No. D2000-0011. Additionally, previous UDRP panels have found that when respondents have not availed themselves of their rights to respond to complainants, it can be a further inference in appropriate circumstances that respondents have no rights nor legitimate interests in the domain name at issue. See AREVA v. St. James Robyn Limoges,WIPO Case No. D2010‑1017; Nordstrom, Inc. and NIHC, Inc. v. Inkyu Kim,WIPO Case No. D2003-0269. The Panel finds that the Respondent has never been licensed or otherwise authorized to use the AIR FRANCE trademark and the Respondent is not an agent of the Complainant.
Furthermore, the Panel finds that the Respondent is not making bona fide use of the Domain Name under paragraph 4(c), as the Domain Name links to what appears to be a “parked” page. This Panel agrees with the viewpoint that to register domain names and park them to earn rental revenue by allowing a third party to use the domain name is not by itself to be considered a bona fide use of the domain name in connection with the offering of goods or services by the registrant of that domain name. Trade Me Limited v. Vertical Axis Inc.,WIPO Case No. D2009-0093. However, the Panel recognizes that parking webpages may be permissible in some circumstances, as discussed in section 2.9 of WIPO Overview 3.0. None of those factors are present here. There is no evidence that the Domain Name consists of dictionary or common words or phrases that support the pay-per-click links genuinely related to the generic meaning of the domain name at issue. Instead, the Domain Name appears to have been registered with the intent that confused Internet users searching for the Complainant will be directed to the Respondent’s parked webpage for commercial gain. Such activity does not provide a legitimate interest in that domain name under the Policy. See M.F.H. Fejlesztõ Korlátolt Felelõsségû v. Satoshi Shimoshita,WIPO Case No. D2014-1726.
Lastly, the Respondent’s use of the Domain Name is not “noncommercial or fair use” under paragraph 4(c)(iii) of the Policy, given that the Respondent is seeking commercial gain from its use of the Domain Name by establishing a parked page with advertisements that compete with the Complainant’s products and services. Therefore, the Domain Name is used for commercial purposes and paragraph 4(c)(iii) is not applicable. See O, Inc. v. Metro Media,WIPO Case No. DME2009-0001 (“respondent’s use of the disputed domain name to establish a parking page was “plainly not ‘noncommercial’”). Furthermore, in addition to the sponsored advertisements, the website hosted at the Domain Name contains a link advertising the Domain Name is for sale. The Panels find that a standing offer to sell the Domain Name is by its very nature commercial and paragraph 4(c)(iii) is not applicable. See Statoil ASA (Statoil) v. Liheng, Just Traffic Supervision Consulting,WIPO Case No. D2016-2115; AT&T Corp. v. ATandT.net,WIPO Case No. D2005-1006.
Based on the foregoing, the Complainant has made a prima facie showing of the Respondent’s lack of any rights or legitimate interests and the Respondent has failed to come forward to rebut that showing. As provided for by paragraph 14 of the Rules, the Panel may draw such inference from the Respondent’s default as it considers appropriate. The Panel finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Under paragraph 4(a)(iii) of the Policy, the Complainant must show that the Respondent registered and is using the Domain Names in bad faith. A non-exhaustive list of factors constituting bad faith registration and use is set out in paragraph 4(b) of the Policy.
The Complainant contends that the registration by the Respondent of a domain name, which constitutes a typosquatting variant of the Complainant’s AIR FRANCE trademark establishes that the Respondent was aware of the existence of the Complainant’s trademark. Bad faith may be found where a domain name is so obviously connected with a well-known trademark that said use of the domain name by someone with no connection to the trademark suggests opportunistic bad faith. See LEGO Juris A/S v. Reiner Stotte,WIPO Case No. D2010-0494; Sanofi-Aventis v. Nevis Domains, LLC,WIPO Case No. D2006-0303. In fact, panels have held that “typosquatting” alone is evidence of bad faith registration of the disputed domain name. See ESPN, Inc. v. XC2,WIPO Case No. D2005-0444. Based on the Complainant’s submissions, which were not rebutted by the Respondent, the content of the website displayed by the Domain Name references the Complainant or its competitors and contains a link offering the Domain Name for sale. Furthermore, and as also detailed above, the Respondent is not commonly known by the Domain Name and does not have any rights or legitimate interests in the Domain Name. Accordingly, on the record there is no explanation or legitimate interests to justify the Respondent’s choice to register the Domain Name. With no response from the Respondent, this claim is undisputed and the Panel can infer bad faith registration.
Paragraph 4(b)(iv) of the Policy provides that bad faith may be shown if “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online 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.” As discussed herein, the Respondent registered the Domain Name, which is confusingly similar to the Complainant’s AIR FRANCE trademark and developed a webpage displaying the Complainant’s AIR FRANCE trademark and providing links to the Complainant’s competitors as well as a link advertising a general offer to sell the Domain Name. See Identigene, Inc. v. Genetest Laboratories,WIPO Case No. D2000-1100 (finding bad faith where the respondent’s use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site); MathF, LLC v. Weiguang Huang,WIPO Case No. D2000-0743 (finding bad faith under paragraph 4(b)(iv) of the Policy where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark); CEAT Limited, CEAT Mahal, v. Vertical Axis Inc. / Whois Privacy Services Pty Ltd,WIPO Case No. D2011-1981 (finding bad faith as a result of respondent’s general offer to sell the domain name); Virgin Enterprises Limited v. Balticsea LLC / Contact Privacy Inc. Customer 0134432592,WIPO Case No. D2016-2148 (finding that a general offering to sell the domain name is evidence of registration of the domain name in bad faith).
Lastly, the Panel notes the two adverse WIPO UDRP decisions issued against the Respondent as noted by the Complainant in its Complaint. See Autodesk, Inc. v. Web Admin, Ebills Online Services,WIPO Case No. D2015-1358; Ikea Systems B.V. v. Web Admin, Ebills Online Services,WIPO Case No. D2011-1948. The Panel further notes the numerous domain names registered by the Respondent, among which include numerous examples of trademark-abusive domain names. Accordingly, based on the evidence of record, the Panel finds that the Respondent has in fact engaged in a pattern of abusive domain name registration and this pattern is further evidence of the Respondent’s bad faith in regards to the Respondent’s registration and use of the Domain Name.
For these reasons, the Panel holds that the Complainant has met its burden of showing that the Respondent registered and is using the Domain Name in bad faith under paragraph 4(a)(ii) 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.
John C McElwaine
Sole Panelist
Date: December 18, 2018
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