Complainant is Société Air France of Roissy CDG Cedex, France, represented by Meyer & Partenaires, France.
Respondent is Helo Holdings LTD of Amsterdam, the Netherlands. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with SIDN through Premium Registrations Sweden AB. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 23, 2010. On December 28, 2010, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On December 29, 2010, SIDN transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on December 29, 2010. In accordance with the Regulations, article 7.1, the due date for Response was January 18, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 19, 2011.
The Center appointed Gregor S.P. Vos as the Panel in this matter on February 7, 2011. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background
Complainant, Société AIR FRANCE, is a subsidiary of the Air France-KLM Group, a leading airline company which offers a variety of national and international flight destinations.
Complainant has been active under the trade name Société Air France since 1933. In addition, Complainant is, inter alia, owner of the following relevant trademark registrations:
1. Community trademark registration for AIR FRANCE (no. 2528461), filed on January 9, 2002, for classes 6, 8, 9, 12, 14, 16, 18, 19, 20, 21, 24, 25, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44 and 45;
2. International trademark registration for AIR FRANCE and device (no. 414038), registered on March 21, 1975, for, inter alia, the Benelux in classes 12, 16, 21 and 39.
3. French trademark registration for AIR FRANCE (no. 99811269), registered on September 6, 1999 for classes 3, 4, 5, 6, 8, 9, 11, 12, 14, 16, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 44 and 45.
Hereinafter referred to as the “Trademarks”.
Complainant also indicated to be the holder of various domain names containing the element AIR FRANCE, such as , , , , , , , , , , , and .
Respondent is a company established in Amsterdam, the Netherlands. Respondent became the holder of the Domain Name on July 12, 2010. 5. Parties’ Contentions A. Complainant
Complainant bases its complaint on its Trademarks.
The Domain Name is identical or confusingly similar to Complainant’s Trademarks
According to Complainant, the Domain Name is confusingly similar when compared to Complainant’s well-known Trademarks. Complainant argues that it is established case-law that the top level domain “.nl” should be disregarded in the comparison between the Trademarks and the Domain Name.
Furthermore, Complainant states that the only difference between the Trademarks and the Domain Name is the deletion of one letter contained in the Trademark AIR FRANCE (being the first “R” in “AIR”), which is missing in the Domain Name. Previous panels in cases under the Regulations have considered such a minor difference in the domain name as being confusingly similar to the complainant’s trademark.
Respondent has no rights or legitimate interests in the Domain Name
According to Complainant, Respondent has no rights in the name Aifrance and does not own any trademark registrations or is known in relation to the Domain Name.
Complainant furthermore alleges that Respondent is not using the Domain Name for bona fide trade practices. The use of the Domain Name cannot be described as legitimate non-commercial use of the Domain Name because the website under the Domain Name is a circulating a so-called PPC (Pay Per Click) display of sponsored links, some of which to competitors of Complainant.
Respondent has registered or is using the Domain Name in bad faith
With regard to the bad use registration of the Domain Name, Complainant alleges that according to settled case-law, bad faith registration is presumed when Respondent reasonably should have been aware of Complainants’ trademarks. In this respect, Complainant refers to the fact that AIR FRANCE is a well-known trademark, which has a strong reputation and is widely known throughout the world for a long time. Complainant finds it difficult to imagine that Respondent could not have been aware of the Trademarks at the time of application for the Domain Name.
With regard to the bad faith use of the Domain Name, Complainant alleges that Respondent is using the Domain Name to divert and attract Internet users through typographical mistakes, for the sole purpose of generating commercial gain by intentionally taking advantage of Internet traffic and to divert Internet users to other commercial websites through hyperlinks. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Article 10.3 of the Regulations provides that in the event that a respondent fails to submit a response, the complaint shall be granted unless the panelist considers it to be without basis in law or fact.
Based on article 2.1 of the Regulations, a request to transfer a domain name must meet three cumulative conditions:
- The disputed domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law, or other name by means of article 2.1 sub a under II of the Regulations;
- The respondent has no rights to or legitimate interest in the disputed domain name;
- The disputed domain name has been registered or is being used in bad faith.
Considering these conditions, the Panel rules as follows: A. Identical or Confusingly Similar
Complainant has based its Complaint on the Trademarks and has submitted copies of the trademark registrations from which it follows that it is the holder of the Trademarks. Although the invoked French national trademark registration does not grant any relevant rights under Dutch law, the Panel is satisfied that the other invoked (Community and International) Trademarks qualify as trademarks protected under Dutch law.
It is established case law that the top level domain “.nl” can be disregarded in assessing the similarity between the relevant trademark(s) on the one hand, and the disputed domain name on the other. In this regard, the Domain Name could be considered practically identical to the Trademarks. The only difference between the Domain Name and the Trademarks is the absence of the letter “r” in the element “air”, which does not make any relevant difference (see also XS4ALL Internet B.V. v. Terminte,WIPO Zaaknr. DNL2009-0042).
Therefore, the Panel finds that the Domain Name is confusingly similar to Complainant’s Trademarks and that Complainant has established article 2.1 sub a of the Regulations. B. Rights or Legitimate Interests
Pursuant to article 2.1 sub b of the Regulations Complainant must demonstrate that Respondent has no rights to or legitimate interest in the Domain Name. This condition is met if Complainant makes a prima facie case that Respondent has no such rights or interests, and Respondent fails to rebut this (see for example Technische Unie B.V. and Otra Information Services v. Technology Services Ltd.,WIPO Zaaknr. DNL2008-0002).
As follows from the Complaint, Respondent does not have any relevant trademark or trade name rights regarding the term “Aifrance”. Respondent is not affiliated to Complainant and has received no consent to use the Trademarks. Respondent offers the Domain Name for sale and uses the Domain Name to offer sponsored links.
Respondent did not dispute this, and the Panel could not establish any indications that any of the circumstances as described in article 3.1 of the Regulations apply, nor that Respondent in any possible other way has a right to or legitimate interest in the Domain Name. The Panel is therefore satisfied that Respondent has no rights to, or legitimate interest in, the Domain Name. C. Registered or Used in Bad Faith
Given the fact that Complainant’s well-known Trademarks pre-date the date of the current registration of the Domain Name, the Panel is of the opinion that Respondent was aware or should been aware of Complainant and its Trademarks. Taking into account that the website under the Domain Name offers sponsored links to inter alia competitors of Complainant and is offered for sale, the Domain Name can also be considered as used for commercial gain, by attracting Internet users to a website or other online location of Respondent through the likelihood of confusion which may arise with the Trademarks.
Furthermore, taking into account various previous administrative panel decisions such as BinckBank N.V. v. Helo Holdings Ltd,WIPO Case No. DNL2010-0014, CEWE COLOR AG & Co. OHG v. Helo Holdings LTD,WIPO Case No. DNL2010-0034, and SPRL Trezia v. Helo Holdings LTD,WIPO Case No. DNL2010-0054, in all of which Respondent was involved as the respondent as well, in which it also chose not to file a response, and in which the appointed panel ordered transfer of the disputed domain names, it seems likely that the Respondent follows a pattern of registering and using domain names in bad faith.
Given the above, the Panel holds that the Domain Name has been registered and is being used in bad faith. The third criterion is therefore also met. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name be transferred to Complainant.
Gregor S.P. Vos
Panelist
Dated: February 21, 2011
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