The Complainant is Amadeus IT Group, S.A., Spain, represented by UBILIBET, Spain.
The Respondent is Registration Private, Domains By Proxy LLC / Josh Swalheim, United States of America.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 23, 2021. On September 23, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 23, 2021, 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 sent an email communication to the Complainant on September 24, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint.
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 October 6, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 26, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 28, 2021.
The Respondent replied, by email dated October 28, 2021, asking how it could submit a late response and indicating that it was willing to transfer the disputed domain name to the Complainant. The Center replied with an email asking whether the parties wished to explore settlement discussions. The Complainant responded on November 16, 2021, stating that it did not wish to do so and that the Center should now proceed with the panel appointment process.
The Center appointed Antony Gold as the sole panelist in this matter on November 30, 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 BackgroundThe Complainant is a company founded in 1987, with its headquarters in Madrid, Spain, which provides technology solutions and services to the travel sector. It presently operates in 190 countries and has a worldwide team of over 15,000 people.
The Complainant has traded since foundation as AMADEUS and it has secured trade mark registrations in many countries to protect this trading style. The Complainant’s earliest AMADEUS marks were applied for in 1987 and its trade mark portfolio includes, by way of example only, European Union Trade Mark, registration number 002069375, for AMADEUS in classes 9, 12, 16, 35, 36, 38, 39 and 42, registered on August 29, 2005.
The disputed domain name was registered on February 11, 2019. As at the date of submission of the Complaint, it resolved to a holding page headed “Amadeus Technology Inc. The intersection of data management and mindful business practices”. Beneath was a notice; “Posts are coming soon. Stay tuned”. It presently resolves to a holding page which contains a notice; “Looks Like This Domain Isn’t Connected To A Website Yet!”1 .
5. Parties’ Contentions A. ComplainantThe Complainant says that the disputed domain name is identical or confusingly similar to a trade mark or service mark in which it has rights. It refers to its AMADEUS trade marks, full details of one of these marks having been set out above, and says that the disputed domain name incorporates the entirety of its trade mark and is clearly recognizable within it. The addition of the descriptive term “technology” does not prevent a finding of confusing similarity under the first element.
The Complainant says that the Respondent has no rights or legitimate interests in respect of the disputed domain name. There is no evidence of the Respondent’s use of the disputed domain name in connection with a bona fide offering of goods and services nor that the Respondent has been commonly known by the disputed domain name. The Respondent is not a licensee of the Complainant, nor has it been authorized or otherwise permitted to use the Complainant’s AMADEUS trade marks, nor is it making a legitimate noncommercial or fair use of the disputed domain name. In particular, the disputed domain name is essentially identical to the Complainant’s mark and, in consequence, it carries a high risk of implied affiliation with the Complainant.
Finally, the Complainant says that the disputed domain name was registered and is being used in bad faith. Registration of a domain name that is identical or confusingly similar to a famous or well-known trade mark by an unaffiliated entity can by itself create a presumption of bad faith. The fact that the disputed domain name, not only incorporates the Complainant’s mark in full but also includes a word, “technology”, which is linked to the services which the Complainant provides, is evidence that the Respondent registered the disputed domain name with the Complainant in mind. Having regard to the fame of the Complainant’s mark, it is difficult to believe that the Respondent was not aware of it as at the date of registration of the disputed domain name; see TTT Moneycorp Limited v. Privacy Gods / Privacy Gods Limited,WIPO Case No. D2016-1973. The Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor in that it is depriving the Complainant of the opportunity to use the disputed domain name. Additionally, the Respondent is using the disputed domain name in order intentionally to attract for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsDealing, first, with the Respondent’s failure to file a response to the Complaint, paragraph 14(b) of the Rules provides that if a party, in the absence of exceptional circumstances, does not comply with a provision of, or requirement under these Rules, the Panel shall be entitled to draw such inferences from this omission, as it considers appropriate.
Paragraph 4(a) of the Policy provides that the Complainant proves each of the following three elements in order to succeed in its Complaint:
(i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(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.
Before turning to the substantive issues, the Panel deals briefly with the fact that the Complainant has asked that there should be a formal determination of the Complaint, notwithstanding that the Respondent indicated to the Center, by its email dated October 28, 2021, that it was willing to transfer the disputed domain name to the Complainant.
Section 4.10 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) addresses the position where a respondent has informally consented to the transfer of the domain name in issue outside of the standard settlement process. It explains that, whilst many panels in these circumstances will order the remedy requested solely on the basis of the respondent’s consent, there will be circumstances in which a panel, in its discretion, may proceed to a substantive decision on the merits. One of these circumstances is if the complainant has not agreed to accept such consent and has expressed a preference for a recorded decision. See also, Facebook Technologies, LLC v. Jack Zhang,WIPO Case No. D2019-2160. Accordingly, in the light of the position taken by the Complainant, the Panel proceeds to a full decision.
A. Identical or Confusingly SimilarThe Complainant has provided details of a number of the registered trade marks it owns for AMADEUS, including the mark in respect of which full details have been set out above, which establish its rights in this mark.
As a technical requirement of registration, the Top-Level Domain, that is “.com” in the case of the disputed domain name, is typically disregarded when assessing confusing similarity. The question for determination is therefore whether the “amadeustechnology” component of the disputed domain name is confusingly similar to the Complainant’s AMADEUS trade mark.
The disputed domain name comprises the Complainant’s AMADEUS trade mark in its entirety, followed by the word “technology”. This additional word does not prevent the disputed domain name from being found confusingly similar to the Complainant’s mark. As explained at section 1.8 of the WIPO Overview 3.0: “Where the relevant trade mark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”.
The Complainant’s AMADEUS mark is recognizable within the disputed domain name and the Panel accordingly finds that it is confusingly similar to a trade mark in which the Complainant has rights.
B. Rights or Legitimate InterestsParagraph 4(c) of the Policy provides, without limitation, examples of circumstances whereby a respondent might demonstrate that it has rights or legitimate interests in a domain name. In summary, these are if a respondent has used, or made demonstrable preparations to use, the domain name in connection with a bona fide offering of goods and services, if a respondent has been commonly known by the domain name or a name corresponding to the domain name, or if a respondent has made a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark in issue.
Using the disputed domain name merely in order to resolve to a “coming soon” or parked webpage does not comprise a bona fide offering of goods and services; see, by way of example, ZipRecruiter Inc. v. Mark Barrows,WIPO Case No. D2020-2735. The first circumstance outlined above is accordingly not fulfilled. There is no evidence to indicate that the Respondent has been commonly known by the disputed domain name and the second circumstance set out at paragraph 4(c) of the Policy is therefore equally inapplicable. Nor is the third circumstance applicable; non-use of the disputed domain name or use of it simply to point to a “coming soon” webpage does not equate to a legitimate noncommercial use of it. Furthermore, the characteristics of the disputed domain name are strongly suggestive of an affiliation or connection with the Complainant, which prevents its use from being considered fair. In this respect, see section 2.5.1 of the WIPO Overview 3.0; “[W]here a domain name consists of a trademark plus an additional term (at the second- or Top-Level), UDRP panels have largely held that such composition cannot constitute fair use if it effectively impersonates or suggests sponsorship or endorsement by the trademark owner”.
The Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name and the burden of production shifts to the Respondent to show that it does have such rights or legitimate interests. In the absence of any response from the Respondent to the Complaint, it has failed to satisfy that burden. The Panel accordingly finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad FaithAs at the date of registration of the disputed domain name in February 2019, the Complainant had been trading as AMADEUS for over 30 years. The disputed domain name comprises the Complainant’s mark in full and adds the word “technology”, which is descriptive of the nature of the services provided by the Complainant to its customers. The composition of the disputed domain name, coupled with the failure of the Respondent to provide any explanation which might provide a good faith justification for its registration of it, provide persuasive evidence that the Respondent was aware of the Complainant’s AMADEUS mark as at the date of registration of the disputed domain name and that it was registered in order to take unfair advantage of the Complainant’s mark in some manner. As the panel found in Herbalife International, Inc. v. Surinder S. Farmaha,WIPO Case No. D2005-0765, “the registration of a domain name with the knowledge of the complainant’s trade mark registration amounts to bad faith”. The Panel therefore finds the Respondent’s registration of the disputed domain name to have been in bad faith.
The current use of the disputed domain name to resolve to a “coming soon” web page does not prevent a finding of bad faith under the doctrine of passive holding. In this respect, see section 3.3 of the WIPO Overview 3.0, which explains that; “[f]rom the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or ‘coming soon’ page) would not prevent a finding of bad faith under the doctrine of passive holding”. The factors that are typically considered when applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealment of its identity or its use of false contact details and (iv) the implausibility of any good faith use to which the domain name may be put. See also VOLKSWAGEN AG v. Danny de graaf,WIPO Case No. D2020-1940.
Applying these factors to the current circumstances: (i) the Complainant has established that its AMADEUS trade mark is long-established and it is distinctive in the context of the services for which it is used; (ii) the Respondent has not provided any evidence of actual or contemplated good faith use of the disputed domain name. The fact that, as outlined above, the Respondent has indicated a willingness to transfer the disputed domain name to the Complainant tends to affirm the absence of any basis on which it could advance a claim of good faith registration and use; (iii) the underlying registrant sought to protect his details through use of a privacy service, albeit his details were disclosed to the Complainant by the Respondent on the public WhoIs record prior to the filing of the Complaint; and (iv) there is no plausible good faith use to which the disputed domain name could be put by the Respondent. Accordingly, the circumstances of the Respondent’s holding of the disputed domain name support a finding of bad faith under the doctrine of passive holding.
The Panel therefore finds that the Respondent has registered and is using the disputed domain name in bad faith. In the light of this finding, it is unnecessary for the Panel to consider the Complainant’s additional submissions in respect of the third element.
7. DecisionFor 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
Antony Gold
Sole Panelist
Date: December 14, 2021
1 As explained at section 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision. The Panel has accordingly visited the website to which the disputed domain name resolves in order to establish the use, which is presently being made of it.