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Société Air France v. Alf Temme [2004] GENDND 1215 (16 September 2004)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Société Air France v. Alf Temme

Case No. D2004-0548

1. The Parties

The Complainant is Société Air France, Roissy CDG Cedex, France, represented by MEYER & Partenaires, France.

The Respondent is Alf Temme, North Hollywood, California, United States of America.

2. The Domain Names and Registrar

The disputed domain names:

<airdrance.com>
<airfrabce.com>
<irfranced.com>
<airfrancew.com>
<airfrancr.com>
<airfranve.com>
<airfranxe.com>
airfrqnce.com>
<airfrsnce.com>
<airftance.com>
<aitfrance.com>
<akrfrance.com>
<aurfrance.com>
<qairfrance.com>
<qirfrance.com>
<sairfrance.com>
<sirfrance.com> are all registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 23, 2004. On July 26, 2004, the Center transmitted by email to Moniker Online Services, LLC., a request for registrar verification in connection with the domain names at issue. On July 27, 2004, Moniker Online Services, LLC., transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 28, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was August 17, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 24, 2004.

The Center appointed Anders Janson as the sole panelist in this matter on September 1, 2004. 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 asserted, and provided evidence in support of, the following facts, which the Panel finds established:

The Complainant, Société Air France, is an airline passenger and freight company, established under the laws of France in 1933. Air France is one of the world’s major airline companies, operating internationally with 1800 daily flights to 191 cities in 80 countries.

The Complainant has developed extensive advertising channels, such as online advertising, printed media and incentive programs.

The Complainant is operating an international web portal at “www.airfrance.com”, as well as sites consisting of or incorporating the trademark “AIR FRANCE” with several gTLDs and ccTLDs.

“AIR FRANCE” is the trademark of the Complainant, and has been in use since 1933. The Complainant is the registered owner of a large number of trademarks consisting of or including the wording “Air FRANCE”. The Complainant’s trademark portfolio includes the following registered trademarks.

- Nominative trademark No. 1 703 113, registered in France on October 31, 1991, for the mark “AIR FRANCE” for all classes of the 1957 Nice Agreement, (i. e. 1 - 42).

- Nominative trademark No. 99 811 269, registered in France on October 6, 1999, for the mark “AIR FRANCE” in 32 classes, among them class 38 (Internet services)

- Nominative trademark No. 0610072, in the United States of America on August 2, 1955, for the mark “AIR FRANCE” in class 105 (International class 39; Air transportation of passengers and air and motor transportation of freight).

The Complainant’s trademark is well known. It is registered and used in commerce around the world and widely known throughout. Panels in previous UDPR cases have previously considered this to be a fact (Société Air France v. Kitchkulture, WIPO Case No. D2002-0158 and Société Air France v. Henry Chan, WIPO Case No. D2004-0239).

The Respondent is an individual with a stated address in Los Angeles, USA, who does not have any affiliation with the Complainant.

No license or authorization has been granted by the Complainant to Alf Temme to make any use, nor apply for registration of the disputed domain names.

The disputed domain names were registered by the Respondent with Moniker Online Services LLC. on March 10, 2004. On April 1, 2004, the disputed domain names all resolved to the website “www.quickgym.com” offering a fitness product and ordering possibilities thereof. The Respondent’s address is the same as the address stated on the website. The Respondent also is the holder of the domain name <quickgym.com>.

The domain names have since been pointed to several URLs, all belonging to the Respondent.

The Panel notes that the domain names as of now are directed to “www.fastexercise.com”, which is the same website that “www.quickgym.com” is directed to.

5. Parties’ Contentions

A. Complainant

The Complainant contends that:

- The disputed domain names are confusingly similar to a trademark or service mark in which the Complainant has rights;

- The Respondent has no rights or legitimate interests in respect of the domain names;

- The domain names have been registered and are being used in bad faith; and

- The domain names <airdrance.com>, <airfrabce.com>, <airfranced.com>, <airfrancew.com>, <airfrancr.com>, <airfranve.com>, <airfranxe.com>, <airfrqnce.com>, <airfrsnce.com>, <airftance.com>, <aitfrance.com>, <akrfrance.com>, <aurfrance.com>, <qairfrance.com>, <qirfrance.com>, <sairfrance.com> and <sirfrance.com> should be transferred to the Complainant

B. Respondent

The Respondent did not reply to the Complainant’s contentions. The Panel notes however that the Respondent informally, in e-mail correspondence with the Center has conceded to the Complainant’s claim.

6. Discussion and Findings

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(i) that the disputed domain names registered by the Respondent are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain names; and

(iii) that the disputed domain names have been registered and are being used in bad faith.

A. Identical or Confusingly Similar

The domain names at issue are <airdrance.com>, <airfrabce.com>, <airfranced.com>, <airfrancew.com>, <airfrancr.com>, <airfranve.com>, <airfranxe.com>, <airfrqnce.com>, <airfrsnce.com>, <airftance.com>, <aitfrance.com>, <akrfrance.com>, <aurfrance.com>, <qairfrance.com>, <qirfrance.com>, <sairfrance.com> and <sirfrance.com>. Complainant is the holder of a large number of registered trademarks consisting of or containing the wording Air France. The trademark is very well known .

The Complainant has asserted that the disputed domain names are misspellings of the trademark “AIR FRANCE”, consisting of a substitution of a letter with a letter in close proximity on the computer keyboard or an addition of a letter as a suffix or a prefix, which letter also is in close proximity on the computer keyboard to the last or the first letter respectively, thus making the misspelling easier. The Complainant has therefore concluded the Respondent is engaged in typosquatting.

The Complainant has further asserted, and provided evidence in support of, the similarity between the trademark and the disputed domain names. If a search is made through the search engine Google for the disputed domain names, the search engine suggests “Air France” as the correct spelling. Thus, the substitutions/additions does not eliminate any confusion with the Complainant’s mark.

The Panel finds it established that the trademark “AIR FRANCE” is very well known and that the ownership of the trademark belongs to the Complainant. The Panel further finds it established that the disputed domain names are purposeful misspellings of the trademark in a way that constitutes typosquatting.

The Panel notes that the disputed domain names do not in themselves have any obvious meaning. The misspelling consists of only one letter, which is either substituting another letter in the trademark “AIR FRANCE”, or adding a letter as a suffix or prefix. The Respondent has hereby taken advantage of the common misspellings made by Internet users when searching for the Air France website.

In conclusion, the Panel finds that the Complainant has provided statements to support the supposition that the disputed domain names and the trademark of the Complainant are confusingly similar.

The Respondent does not contest this supposition.

The domain names must therefore be considered confusingly similar to the trademark “AIR FRANCE”. The Panel holds that the Complainant has established element (i) of the Policy’s Paragraph 4(a).

B. Rights or Legitimate Interests

The Complainant has asserted that the Respondent is not and has never been commonly known under any of these wordings. The Respondent is not related in any way to the Complainant, and has not been granted any license to make any use of, nor apply for the registration of the disputed domain names by the Complainant.

The Panel finds it established that the disputed domain names all resolve to a website which are affiliated to the Respondent. On the website the Respondent offers a fitness-product for sale. The Panel finds that such use of the misspellings of Internet users does not constitutes a bona fide offering of goods and services.

The Respondent has not filed a Response in accordance with the Rules, Paragraph 5.

There is no apparent connection between the Respondent and the disputed domain names, and no obvious legitimate connection between the disputed domain names and the content of the site to which it links. There is no evidence of the Respondent’s use of, or demonstrable preparation to use the domain names with a bona fide offering of goods and services. The Respondent has not presented any evidence of rights or legitimate interest in using the disputed domain names.

Under these circumstances, the supported assertion from the Complainant that the Respondent has no rights or legitimate interests is enough to shift the burden of proof to the Respondent for him to demonstrate such a right or a legitimate interest. The Respondent has not presented any evidence of rights or legitimate interests in using the disputed domain names and has no obvious connection to them.

The Panel therefore holds that the Complainant has established element (ii) of the Policy’s Paragraph 4(a).

C. Registered and Used in Bad Faith

For the purposes of Paragraph 4(a)(iii), evidence of the registration and use of a domain name in bad faith shall include, inter alia, proof that by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the Complainant’s mark as to the source or affiliation of the website or of a product or service on the website (Policy, Paragraph 4(b)(iv)).

The Panel has already established that the mark “AIR FRANCE” is well known, and that the disputed domain names are confusingly similar to the Complainant’s famous mark. The trademarks have been registered in many countries for decades. The Complainant is a very well known airline company that provides passenger and freight services.

Considering that the Respondent has conceded to the Complainant’s assertions, the Panel finds it established that the Respondent registered the disputed domain knowingly of the Complainant’s trademark. The Respondent’s actions also suggest a pattern of conduct. The Respondent has no legitimate interest or use in the domain names.

For the abovementioned reasons, the Panel finds that the Respondent has registered the disputed domain names in bad faith. The Panel therefore, concludes that the Complainant has proven that the Respondent was acting in bad faith pursuant to Paragraph 4(a)(iii) of the Policy.

7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names <airdrance.com>, <airfrabce.com>, <airfranced.com>, <airfrancew.com>, <airfrancr.com>, <airfranve.com>, <airfranxe.com>, <airfrqnce.com>, <airfrsnce.com>, <airftance.com>, <aitfrance.com>, <akrfrance.com>, <aurfrance.com>, <qairfrance.com>, <qirfrance.com>, <sairfrance.com> and <sirfrance.com> be transferred to the Complainant.

Anders Janson
Sole Panelist

Date: September 16, 2004