The Complainant is Comair Limited, South Africa, represented by Adams & Adams, South Africa.
The Respondent is Domain Administrator, Super Privacy Service LTD c/o Dynadot, the United States of America (the “United States”) / song lan, China. 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, 2021. On June 9, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 10, 2021, 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 10, 2021, 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, 2021. 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 18, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 8, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 9, 2021. The Center appointed Fabrizio Bedarida as the sole panelist in this matter on July 28, 2021. 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, Comair Limited, is a South African company offering scheduled and non-scheduled airline services within South Africa, sub-Saharan Africa and the Indian Ocean Islands as its core business. The Complainant has used, and continues to use, its KULULA trademark to offer an assortment of services to its clients. These services include, inter alia, car hire, financial services, and accommodation. The Complainant is the proprietor of the KULULA trademarks and other trademarks incorporating the KULULA sign, which it has registered in various classes covering a wide range of goods and services in various jurisdictions. The Complainant has proven to be the owner of the KULULA mark. The Complainant is inter alia the owner of: - Botswana Registration KULULA No. 2001000235 registered on November 16, 2004; - Kenya Registration KULULA No. 1003069 registered on April 6, 2004; - Kenya Registration KULULA No. 1002603 registered on March 28, 2003; - Malawi Registration KULULA No. 2003000052 registered on October 24, 2003; - Namibia Registration KULULA No. 2002001448 registered on August 27, 2004. The disputed domain name was registered on December, 31, 2020. The Complainant’s trademark registrations predate the registration of the disputed domain name. The domain name The disputed domain name previously (and at least until June 5, 2021) resolved to a cash-parked, active webpage situated at “www.kululaa.com”. Currently it resolves to a parking page which contains links or “sponsored listings” to different websites, some of them also relating to the booking of flight tickets. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to the KULULA trademark, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name has been registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order for the Complainant to obtain the transfer of the disputed domain name, paragraphs 4(a)(i)-(iii) of the Policy require that the Complainant must demonstrate to the Panel 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. A. Identical or Confusingly Similar The Complainant has established rights in the KULULA trademark. The disputed domain name consists of the KULULA trademark with the addition of the letter “A” at its end. This Panel considers that the addition of the letter “A” to the Complainant’s KULULA trademark in the disputed domain name is irrelevant in assessing the confusing similarity between the Complainant’s trademark and the disputed domain name. In addition, the Panel agrees with the Complainant’s view that this is a case of typo-squatting. Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests This Panel finds that the Complainant has made a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. The Respondent has no connection to or affiliation with the Complainant, and the Complainant has not licensed or otherwise authorized the Respondent to use or register any domain name incorporating the Complainant’s trademark. The Respondent does not appear to be commonly known by the name “kululaa” or by a similar name. The Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name, nor any use in connection with a bona fide offering of goods or services. Finally, the Respondent has not replied to the Complainant’s contentions, alleging any rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Based on the evidence put forward by the Complainant, the Panel is of the opinion that the Respondent was aware of the Complainant’s trademark rights when it registered the disputed domain name. The Complainants’ trademark has been registered and used for many years and is a renowned trademark in its own sector. i.e. airline services. In addition, the Respondent’s knowledge of the Complainants’ trademark is particularly obvious, given that the Respondent, on the balance of probability, is using a slight variation of the Complainant’s trademark (i.e., a typo) to mislead Internet users to go to its own commercial website where pay-per-click links to third-party websites and also competitor’s websites are displayed. It also appears that the Respondent, on the very same day it registered the disputed domain name, also registered other domain names corresponding to renowned third-party registered trademarks. Hence, the registration of the disputed domain name does not seem to be a coincidence, but most likely part of an illicit scheme. This indicates that the Respondent knew of the Complainant’s trademarks and intentionally intended to create an association with the Complainant and its business at the time of the registration of the disputed domain name. Inference of bad faith can also be found in the failure to respond to the Complainants’ claims made in this proceeding and in the cease and desist letter previously sent to the Respondent by the Complainant’s representatives. Moreover, by using the confusingly similar disputed domain name to display pay-per-click links, including some links to competitors of the Complainant’s, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark. Another factor supporting the conclusion of bad faith registration and use of the disputed domain name is given by the fact that the Respondent deliberately chose to conceal its identity by means of a privacy protection service. While the use of a privacy or proxy registration service is not in and of itself an indication of bad faith, it is the Panel’s opinion that in the present case the use of a privacy shield, combined with the elements discussed herein, amounts to a further inference of bad faith registration and use. Finally, it appears that the Respondent, as anticipated above, has abusively registered other domain names corresponding to typos of third-party renowned registered trademarks. In fact, the Respondent was the succumbing party in the following cases: Compagnie Générale des Etablissements Michelin v. Super Privacy Service LTD c/o Dynadot / Song Lan,WIPO Case No. D2021-0920 domain name Accordingly, the Panel finds, on the basis of the evidence presented, that the Respondent registered and is using the disputed domain name in bad faith. Therefore, the Complainant has satisfied 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, Fabrizio Bedarida
Sole Panelist
Date: August 6, 2021
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