The Complainant is SA Airlink (Pty) Limited, South Africa, represented by Adams & Adams Attorneys, South Africa.
The Respondent is Andersen Franks, South Africa. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 8, 2020. On June 8, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 9, 2020, 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 June 9, 2020 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 June 11, 2020. 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 June 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 6, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 7, 2020. The Center appointed Clive Duncan Thorne as the sole panelist in this matter on July 10, 2020. 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 founded in South Africa in 1992 by Rodger Foster and Barrie Webb who acquired the business of Link Airways which in turn had been formed by the merger of three small airlines; Magnum Airways, Border Air and City Air in the late 1980’s, and whose origins went back to 1967. Messrs Foster and Webb named the new airline SA Airlink and it has traded under that name since 1992. The Complainant also acquired Midlands Aviation (Pty) Ltd in 1994 and the two businesses merged and continued trading as Airlink using the Midlands aviation corporate entity renamed to SA Airlink (Pty) Ltd. This company also purchased Metavia (Pty) Ltd in 1998. The Complainant developed into South Africa’s first feeder network specifically aimed at linking smaller towns, regional centers and hubs throughout the country. It is now one of the largest privately owned regional airlines in Southern Africa operating on 55 routes in 10 countries; namely Botswana, Lesotho, Madagascar, Mozambique, Namibia, South Africa, Saint Helena, Ascension and Tristan da Cunha, Eswatini, Zambia and Zimbabwe. Approximately 1.9 million passengers now fly with the Complainant annually for business and pleasure, with approximately 63,300 flights and 62 aircraft. It also offers chartered flights in South Africa. The Complainant operates an in-class training center in Bonaero Park in Johannesburg, South Africa. This houses state of the art training facilities for pilot, maintenance engineer and cabin crew. Screenshots from the Complainant’s website showing details of the center are exhibited as Annex 5 to the Complaint. The Complainant’s official website at “www.flyairlink.com” sets out the history and development of the Complainant’s business. The Complainant refers to important milestones, including; (i) The launch of its J41 fleet before Queen Elizabeth II in 1995; By 2013 the Complainant had a turnover of approximately ZAR 2.2 billion. It has created a prominent network of domestic and regional flights within Southern Africa which has promoted business and tourism in areas which were otherwise inaccessible. By 2019 the turnover had increased to ZAR 4.9 billion. The Complainant has extensively promoted and advertised its services in the South African media under the mark AIRLINK. In 2019, its spend was ZAR 22.8 million. It publishes a monthly in-flight magazine called Skyways. A copy of the October 2017 edition is exhibited showing a cover feature relating to the new service to Saint Helena, Ascension and Tristan da Cunha and an advertisement for the flights to Saint Helena, Ascension and Tristan da Cunha. The Complainant has an official website at “www.flyairlink.com” which uses the mark AIRLINK. In 2019 the average number of website users was 75,700. The Complainant extensively promotes its services using the mark AIRLINK. It is the registered proprietor of South African trade mark No. 2018/13657 in class 41 in respect of “education, providing of training; entertainment; sporting and cultural activities”. This registration is for a period of 10 years from May 16, 2018. A copy of the registration certificate is exhibited as Annex 8 to the Complaint. The Complainant maintains that it has also acquired a significant reputation and goodwill in the mark AIRLINK in relation to air transport and travel arrangements through long use as evidenced above. The Complainant’s rights predate the date of registration of the disputed domain name According to the Complaint the Complainant first became aware of the disputed domain name on May 13, 2020. On May 15, 2020, it instructed its attorneys, Adams & Adams in Pretoria to write the demand letter to the Respondent exhibited as Annex 12 to the Complaint requesting appropriate undertakings to delete the disputed domain name and use of the mark AIRLINK. Despite evidence of delivery no response appears to have been received. The disputed domain name resolves to a website purportedly offering online educational and training services by the Complainant. In the absence of a Response this Panel finds the evidence as set out above to be true and proceeds to determine the Complaint on that basis. 5. Parties’ Contentions A. Complainant The Complainant submits: (i) The disputed domain name is confusingly similar to the registered South African trade mark No. 2018/13657 AIRLINK owned by the Complainant as well as its reputation, goodwill and common law rights in the mark AIRLINK; (ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; (iii) On the evidence the disputed domain name was registered and is being used in bad faith by the Respondent. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar Having considered the evidence of the Complainant’s registered rights in the mark AIRLINK as set out in section 4 above the Panel is satisfied that the Complainant has established ownership of such rights predating the date of registration of the disputed domain name. The disputed domain name In accordance with established authority and guidance contained in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11, the Panel disregards the TLD “.com”. The Panel therefore finds that the disputed domain name is confusingly similar to the mark AIRLINK in which the Complainant has rights within paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant submits that on the evidence it has not authorized the Respondent to use the mark AIRLINK as part of the disputed domain name, having acquired rights in the mark prior to registration of the disputed domain name. Given the evidence of use of the disputed domain name, it is unlikely that the Respondent did not have knowledge of the Complainant’s rights in the mark AIRLINK at the date of registration of the disputed domain name. The Complainant points out that there is no evidence that the Respondent has been commonly known by the name “Airlink” and/or the disputed domain name nor that it has acquired any rights in it. Moreover, based on the available record, the Respondent has not registered AIRLINK or used it in the course of trade so that the Respondent would not have acquired user rights from such a source. On the evidence the disputed domain name resolves to a website purportedly offering online educational and training services not by the Respondent but by the Complainant. This is therefore an intentional attempt by the Respondent to mislead members of the public and benefit from any confusion arising. This is the antithesis of legitimate, noncommercial or fair use and would be unlawful. There is no evidence of use of the disputed domain name in connection with a bona fide offering of goods or services by the Respondent. The Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests so that the burden of production to rebut the Complainant’s evidence falls upon the Respondent. If it fails to do so then on the basis of established previous authority such as Document Technologies, Inc v. International Electronic Communications Inc.,WIPO Case No. D2000-0270, the Panel should accept that the Respondent has no rights or legitimate interests in the disputed domain name. This Panel having considered the evidence adduced by the Complainant and in the absence of evidence from the Respondent finds that the Complainant has fulfilled its burden of proof and shown that the Respondent has no rights or legitimate interests in the disputed domain name within paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Complainant draws attention that, as seen in Annex 5 to the Complaint, images of the exterior of its training center contained on its official website have been included on the Respondent’s website. Screenshots of this are contained in the Annex 10 to the Complaint. In addition, the content appearing under the “About Us” tab of the website mimics the wording used by the Complainant in relation to its training center. The Respondent also uses one of the Complainant’s marks consisting of AIRLINK plus a distinctive device consisting of the shape of an aircraft tail prominently incorporating the colours and design of the South African national flag. The Complainant uses the mark on aircraft tails. This is registered, for example, in Mozambique in class 39, no. 15201. This mark as well as the mark AIRLINK were both the subject of the demand letter referred to above. The Complainant submits this use of the marks on the website exacerbates the likelihood of members of the public being deceived into believing that the Complainant is offering online pilot training by way of the Respondent’s website. The Complainant also relies upon the failure of the Respondent despite evidence of its delivery to respond to the demand letter of May 15, 2020. It submits that this evidence of a conscious election to retain the disputed domain name and to continue to use it in bad faith. The Complainant submits that, given its established significant rights in the mark AIRLINK and the infringing use made of it by the Respondent, the Respondent would have been well aware of the Complainant’s rights and reputation in seeking to impersonate it on his website. This could only be to intentionally attempt to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion as to the source of the services offered by the Respondent on his website. The Complainant is concerned that this may be to perpetrate fraud or a phishing attack on vulnerable customers. Customers would book and pay for online courses with a genuine belief, contrary to the fact, that they are offered by the Complainant. This prima facie illegal activity would constitute evidence of bad faith within paragraph 4(b)(iv) of the Policy. The Panel accepts the Complainant’s submissions and finds that for all the above reasons and in the absence of any credible evidence which proves that the disputed domain name has been registered and is or will be being used in a legitimate manner, the only conclusion that can be drawn is that the disputed domain name has been registered and is being used in bad faith within paragraph 4(a)(iii) 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 Clive Duncan Thorne
(ii) The creation of an alliance with South African Airways in 1997;
(iii) The creation of a joint venture to form Swaziland Airlink in 1999;
(iv) The adoption of a new corporate logo in 2006;
(v) Receipt of multiple Feather Awards for excellent service from Airports Company South Africa;
(vi) The first commercial airline to operate scheduled flights to Saint Helena, Ascension and Tristan da Cunha in October 2017;
(vii) Celebration of its 25th anniversary on June 11, 2017.
Sole Panelist
Date: July 20, 2020
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