DECISION

Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc.

Claim Number: FA0311000212653

PARTIES

Complainant is Malev Hungarian Airlines, Ltd. (“Complainant”) represented by Dr. Engel Tamas, of Ormai es Tarsai CMS Cameron McKenna Ugyvedi Iroda Karolyi Mihaly u.12, H-1053, Budapest, Hungary.  Respondent is Vertical Axis, Inc.  (“Respondent”) represented by Ari Goldberger, of EsqWire.com Law Firm, 35 Cameo Drive, Cherry Hill, NJ 08003.

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <malev.com>, registered with The Registry At Info Avenue d/b/a IA Registry.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

Richard Hill as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on November 20, 2003; the Forum received a hard copy of the Complaint on November 20, 2003.

On November 21, 2003, The Registry At Info Avenue d/b/a IA Registry confirmed by e-mail to the Forum that the domain name <malev.com> is registered with The Registry At Info Avenue d/b/a IA Registry and that the Respondent is the current registrant of the name.  The Registry At Info Avenue d/b/a IA Registry has verified that Respondent is bound by the The Registry At Info Avenue d/b/a IA Registry registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On November 25, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of December 15, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@malev.com by e-mail.

A deficient Response was received on December 16, 2003.

On December 30, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

Complainant registered its MALÉV "word" mark with the Hungarian Patent and Trademark Office and registered its Malév Hungarian Airlines "colour label" mark in another 23 countries.  Complainant owns and operates Malév Hungarian Airlines Ltd. located in Budapest, Hungary.

Respondent is using a domain name that is confusingly similar / identical to Complainant’s MALÉV mark in order to attract Internet users to Respondent’s website, which is filled with advertisements and links to competing hotel and travel services.  Respondent does not have rights or legitimate interest under the Policy.

The fame of Complainant’s MALÉV mark and the widespread reputation of Complainant’s Hungarian Airlines permit the inference that Respondent knowingly included the word “malev” in its domain name; using Complainant’s MALÉV mark in order to attract Internet users that would be seeking to access Complainant’s services world wide.  This is evidence of bad faith registration and use under the Policy.

B. Respondent

Although Respondent disputes the factual allegations raised in the Complaint having registered the domain name Malev (the “Disputed Domain”) in good faith, Respondent, nevertheless, stipulates to an immediate transfer of the Disputed Domain to Complainant, a result that Respondent has intended ever since it received notice of the Complaint.

 

Complainant registered the Disputed Domain without any knowledge of Complainant or its trademark for MALEV.  Respondent viewed the domain name as based on the word “MALE” followed by the letter “V” which is often used as an abbreviation for “virtual,” the resultant combination being “MALE Virtual.”  Respondent’s intent was to use the Disputed Domain in connection with an affiliate program in which it generates revenue through paid advertising links.

Upon receipt of the Complaint, Respondent asked its counsel to advise Complainant that it would transfer the Disputed Domain to Complainant and sought no compensation.  On December 1, 2003, counsel for Respondent, Ari Goldberger, emailed counsel for Complainant, Dr. Engel Tamas, advising that Respondent wished to transfer the Disputed Domain to Respondent in exchange for termination of the Complaint.  This offer was not accepted by Complainant.

Respondent denies that it registered the Disputed Domain in bad faith since it had no knowledge of Complainant or its mark when it registered the Disputed Domain.  Respondent denies that it lacks a legitimate interest in the Disputed Domain, having registered it because it formed the compound term MALE V (or male virtual).  Nevertheless, Respondent stipulates that the Disputed Domain be transferred to Respondent.

FINDINGS

The panel will not make any findings of fact, for the reasons explained below.

DISCUSSION

The first issue to be decided by this Panel is a procedural issue, namely whether or not to admit the Response, which was received one day late.  In accordance with Rules 10(b) and 10(c), the Panel extends the deadline for the Response and admits the Response filed on December 16, 2003.  A precedent can be found in Univ. of Alberta v. Katz, D2000-0378 (WIPO June 22, 2000), <arbertau.com>.

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

In this case, the parties have both asked for the domain name to be transferred to the Complainant.  In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties.  Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.

The same conclusion was reached by the Panel in Boehringer Ingelheim Int’l GmbH v. Modern Ltd. - Cayman Web Dev., FA 133625 (Nat. Arb. Forum, Jan. 9, 2003) and in Alstyle Apparel/Active Wear v. Schwab, FA 170616 (Nat. Arb. Forum, Sept. 5, 2003).

DECISION

Given the common request of the parties, it is Ordered that the <malev.com > domain name be TRANSFERRED from Respondent to Complainant.

Richard Hill, Panelist
Dated: January 13, 2004

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