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Airbus Deutschland Gmbh v. DOMAIN-NAME-4-SALE [2005] GENDND 246 (14 March 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Airbus Deutschland Gmbh v. DOMAIN-NAME-4-SALE

Case No. D2005-0092

1. The Parties

The Complainant is Airbus Deutschland Gmbh, Hamburg, Germany, represented by Bird & Bird Solicitors, France.

The Respondent is DOMAIN-NAME-4-SALE, Taipei, Taiwan, Province of China.

2. The Domain Name and Registrar

The disputed domain name <a380.com> is registered with BulkRegister.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 28, 2005. On January 28, 2005, the Center transmitted by email to BulkRegister.com a request for registrar verification in connection with the domain name at issue. On January 28, 2005, BulkRegister.com 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 February 1, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was February 21, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 22, 2005.

On February 25, 2005, the Center received an email, from the Respondent. See 5 B below.

The Complainant filed an amendment to the Complaint on February 28, 2005.

The Center appointed Peter G. Nitter as the Sole Panelist in this matter on February 28, 2005. 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 domain name was created on June 8, 2002.

The Complainant has filed trademark applications for “A380” in more than 40 countries including EU, US, China and Taiwan, Province of China.

It appears from Annex 4 to the Complaint that the international registration No. 781048 of the mark A380 was registered on April 17, 2002, and that the mark A380 was registered in the USA on June 10, 2003.

The Complainant and AIRBUS GROUP have used the A380 trademark since the date of their registration.

The Complainant is one of the main subsidiaries of the AIRBUS group, which was established in 1970 as a European consortium of French, German and later Spanish and UK companies.

Airbus group is one of the two leading aircraft manufacturers that consistently capture around half of all aircraft orders with more than 100 seats.

Airbus group has more than 150 sites throughout the world. Both engineering and manufacturing are trans-national processes. Airbus group also operates several subsidiaries (USA, China, Japan), six regional offices, three training centers, five spare centers and 120 resident customer offices. Airbus group has an international network of some 1,500 suppliers in more than 30 countries. Employing 50,000 employees worldwide, in 2003, Airbus group achieved a turnover of some 19,2 billion euros and provided support for the operation of more than 3,300 Airbus aircraft currently in operation.

Airbus group has an office in Beijing since 1990, while customer services representatives all over China provide on the spot airline support.

In December 2000, Airbus group launched the 555-seat A380 program. The A380 is a double-decker aircraft, which is a very spacious airliner. On January 18, 2005, the A380 was revealed to the world for the first time during an official ceremony.

5. Parties’ Contentions

A. Complainant

Confusingly similar

The domain name in question consists of the Complainant’s trademark with the adjunction of the gTLD “.com”. A wide variety of panelists have considered that the addition of any gTLD has no distinguishing capacity in the context of the domain name.

There is no doubt that the reproduction of the trademark A380, as the sole distinctive element of the domain name concerned, generates confusion. Persons accessing the domain name would be bound to think that the domain name has a connection with the Complainant. An Internet user may think that the domain name directly refers to the A380 aircraft.

In conclusion, the domain name <a380.com> generates confusion with the Complainant’s trademark A380.

Rights or legitimate interests

The Complainant has prior rights in the trademark A380, because it precedes Respondent’s registration of the domain name.

There has been worldwide communication, by Internet, press, TV and radio, relating to the A380 launch.

There is no license, consent or other right by which the Respondent would have been entitled to register or use the domain name incorporating the Complainant’s trademark A380.

The Respondent is not commonly known under the domain name in question.

There is no doubt that the Respondent is aware that A380 corresponds to a trademark.

The Respondent has made no bona fide use of the domain name because of his lack of authorization to use the trademark A380.

It seems that the Respondent has registered the domain name with the intention to mislead consumers and to prevent the Complainant or any Airbus subsidiaries from reflecting the trademark A380 in a corresponding domain name.

Bad faith

Respondent has no prior right and no authorization is given by the Complainant concerning the A380 trademark.

The intent to create a likelihood of confusion is worsened by the fact that the Respondent has diverted consumers in two ways.

The first time by creating a link to a website reproducing the model aircraft A380 and four trademarks owned by the Complainant. This link existed until January 2005.

The second time by creating a link to the website of a competitor of the Complainant. This was done since January 21, 2005.

The linkage shows that the Respondent knows perfectly well about the Complainant and the Airbus group, its activities and competitors. The linkage to the competitor website also indicates both desire to tarnish the mark and the reputation of the Complainant and Airbus group, and a desire to profit from an unjustified use of the domain name.

The Respondent was aware of the A380 launch. In 2000, Airbus group announced publicly its intention to manufacture and to market the A380 aircraft. The registration after a product launch announcement is an example of opportunistic cyber squatting. To register a domain name soon after the Complainant product launch is considered by various panelists to lead to an inference of bad faith.

Furthermore and as mentioned above, shortly after the A380 ceremony in 2005, the Respondent decided to route the domain name to the website of a competitor of the Complainant.

Therefore there is no doubt that the Respondent has registered the domain name in order to prevent the Complainant from reflecting the mark in a corresponding domain name.

The mere holding of a domain name that is identical or confusingly similar to a trademark belonging to a third party can in itself be considered disrupting the business of the right owner.

The domain name A380 has been registered in bad faith only for the purpose of creating a likelihood of confusion with Complainant’s trademark as to the source or affiliation of Respondent’s website or a competitor website.

B. Respondent

The Respondent has not submitted a response, and is thus in default.

However, the Respondent has made an email communication to the Center after receiving the Complaint. On February 25, 2005, the Center received an email from one of Respondent’s email addresses. The sender has not identified himself other than by the email address. The email is very short and states that the direction of traffic to a competitor of the Complainant was a mistake and will never happen again. It also states that you “have no right to take the name from me”.

The Panel will take the contents of the email into consideration when deciding the Complaint.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has registered the trademark A380. Various decisions have noted that top level domain denominators such as “.com” have no distinguishing capacity in the context of domain names.

The Panel concludes that the domain name is manifestly identical to the Complainant’s trademark A380.

B. Rights or Legitimate Interests

The Panel has considered the allegations by the Complainant as to the lack of rights or legitimate interests of the Respondent in respect of the domain name.

There is no relationship between the Complainant and the Respondent. The Complainant has not licensed a right for the Respondent to use its trademark, and no other permission or consent has been granted the Respondent to use the Complainant’s trademark.

The Panel is basing this discussion on the Complainant’s assertion that the Respondent has not used or made any preparations to use the domain name in connection with a bona fide offering of goods or services.

In accordance with the above, there is no evidence allowing the Panel to conclude that any circumstances listed in paragraph 4(c) of the Policy apply to the Respondent, and the Panel thus finds that the Complainant has established prima facie that the Respondent has no rights or legitimate interests in the domain name.

The Complainant has provided evidence that the Respondent has directed the domain name to a website offering domain names for sale. The Panel finds it unlikely that the Respondent would have any rights or legitimate interests in the use of a domain name that is identical to the Complainant’s well-known trademark in connection with such services.

For the above reasons, the Panel finds that the Respondent has no rights or legitimate interests in the domain name.

C. Registered and Used in Bad Faith

The Panel has considered the Complainant’s allegations and evidence with regard to the Respondent’s registration of the domain name in bad faith.

The Complainant has put forward evidence that its trademark A380 is well-known. The mark was also well-known in many countries before the first registration of April 17, 2002, due to the announcement made by the Airbus group in December 2000 regarding its intention to manufacture and market the A380 aircraft. The distinctiveness of the A380 trademark and the Respondent’s linking of the disputed domain name to aircraft related Internet web pages evidences further the Respondent’s knowledge of the Complainant’s rights in the A380 trademark at the time of the registration of the disputed domain name. As a result of this, the Panel finds it evidenced that the Respondent had knowledge of the Complainant’s rights in the A380 trademark at the time of registration of the disputed domain name, and that the domain name was registered in bad faith.

The Respondent created a link from the domain name to a website reproducing the model aircraft A380 and four trademarks owned by the Complainant. The heading above the picture of the aircraft reads: “A380.com DOMAIN NAME FOR SALE.” This link existed until January 2005. Since January 21, 2005, the Respondent created a link from the domain name to the website of a competitor of the Complainant. At present, the domain name does not lead to any particular website.

On this basis the Panel finds that the Respondent’s registration and use of the domain name, which is identical to the Complainant’s trademark, is an attempt to intentionally divert customers to its Internet website for financial gain.

By not submitting a response, the Respondent has failed to invoke any circumstances that could demonstrate that he did not register and use the domain name in bad faith. In addition, the Respondent did not use the opportunity he had during the email correspondence with the Center to present any arguments disproving registration and use in bad faith. Even if the direction of traffic to a competitor of the Complainant was a mistake as stated in the Respondent’s email, it would not alter the conclusion.

The Panel thus finds that the Respondent has registered and used the disputed domain name in bad faith.

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 name <a380.com> be transferred to the Complainant.

Peter G. Nitter
Sole Panelist

Dated: March 14, 2005