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Société Air France v. R Blue [2005] GENDND 387 (12 May 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Société Air France v. R Blue

Case No. D2005-0290

1. The Parties

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

The Respondent is R Blue, Individual, Cypress, Texas, United States of America.

2. The Domain Name and Registrar

The disputed domain name <airfranceaccess.info> is registered with NameSecure L.L.C.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 21, 2005. On March 22, 2005, the Center transmitted by email to NameSecure L.L.C. a request for registrar verification in connection with the domain name at issue. On March 22, 2005, NameSecure L.L.C. 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 March 31, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was April 20, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 22, 2005.

The Center appointed Marcin Krajewski as the sole panelist in this matter on April 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 Complainant, Société Air France, is one of the world’s major airline companies, established under the laws of France in 1933. The Complainant is operating an international web portal “www.airfrance.com” and has also registered several other top-level domains consisting of or incorporating the words “air france”, e.g. “airfrance.us”.

The Complainant is the registered owner of a substantial number of trademarks consisting of or including the wording “air france”. In particular the Complainant owns:

- the nominative trademark “AIR FRANCE”, No. 1 703 113, registered in France on October 31, 1991,

- the nominative trademark “AIR FRANCE”, No. 99 811 269, registered in France on October 6, 1999,

- the nominative trademark “AIR FRANCE”, No. 0610072, registered in the United States of America on August 2, 1955.

The Complainant’s trademark “AIR FRANCE” is well and widely known throughout the world.

The Respondent is an individual with a stated address in Texas, USA.

The disputed domain name was registered by the Respondent with NameSecure L.L.C. on September 13, 2004.

On February 3, 2005, the Complainant wrote a formal letter to the Respondent demanding that he cease operation of the domain name in dispute and transfer it to the Complainant. The letter was sent by registered mail and by e-mail. The registered mail was returned because of insufficient address. In response to the letter sent by e-mail no error message was received.

The Respondent failed to answer to the formal letter.

The disputed domain name resolves to a website with several hyperlinks to other websites which are related to tourism and travel (i.e. other airlines).

The facts mentioned above have been established on the basis of the complaint and documents attached thereto in accordance with paragraph 3(b)(xv) of the Rules.

5. Parties’ Contentions

A. Complainant

The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are present in this case. In particular the Complainant claims that:

(i) The domain name in dispute is confusingly similar to the trademarks in which the Complainant has rights

The Complainant claims that the disputed domain name reproduces entirely the “AIR FRANCE” trademarks.

The Complainant further contends that the addition of the suffix “access” does not eliminate the risk of confusion with the Complainant’s trademarks. The Complainant cites two UDRP decisions to illustrate that the mere addition of a generic or descriptive term to a trademark is not sufficient to distinguish the domain name from the trademark. Moreover, the combination of the Complainant’s trademark with the word “access” suggests that the website refers to the Complainant.

(ii) The Respondent has no rights or legitimate interests in respect of the domain name in dispute

The Complainant states that the Respondent is not affiliated with the Complainant in any way and has not been authorized by the Complainant to use the disputed domain name.

Moreover, the Respondent has never been known under the name “air france” or under the combination of this trademark with the word “access”.

The Complainant cites two UDRP decisions in order to prove that the disputed domain name has been registered to take advantage of the famous Complainant’s trademarks to confuse and divert Internet users to other websites.

(iii) The domain name in dispute was registered and used in bad faith

In support of this position, the Complainant provides that at the time of registration the Respondent must have been aware of the existence of the “AIR FRANCE” trademarks and wanted to refer to the Complainant. Moreover, the Complainant contends that the Respondent registered its domain name in order to divert Internet traffic and to take financial advantage of. The Respondent’s failure to provide accurate postal address constitutes an additional indication of bad faith registration of the disputed domain name.

The Complainant submits that the disputed domain name was not only registered in bad faith but is also being used by the Respondent in bad faith, as it diverts via hyperlinks the Internet traffic to competing third-party commercial websites. The Complainant claims that even if the activity of the related website is not controlled directly by the Respondent but by so-called “parking” program, the Respondent bears full responsibility for such activity.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that the following facts must be established in order to grant the Complainant a remedy:

(1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) that the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) that the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The relevant part of the domain name in dispute is “airfranceaccess”. For the purpose of assessing whether a domain name is identical or confusingly similar to a trademark or service mark, the suffix “info” must be disregarded as being simply a necessary component of a generic top level domain name.

The Panel accepts the Complainant’s allegations that the addition of a generic term to a trademark does not prevent a finding of confusing similarity. This refers to the word “access”. There are numerous WIPO UDRP decisions where it was found that the addition of a generic term does not serve to distinguish the domain name from the trademark, but rather would reinforce the association of the Complainant’s trademark with the domain name (see Viacom International Inc. v. Frank F. Jackson and Nancy Miller, WIPO Case No. D2003-0755, Caterpillar Inc. v. Roam the Planet, Ltd., WIPO Case No. D2000-0275). This Panel sees no reason to challenge this prevailing opinion.

Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Panel is satisfied with the Complainant’s statement that the Respondent was neither affiliated with the Complainant nor in any way authorized to use a domain name that included the words “air france”. The Respondent has not provided evidence of circumstances of the type specified in Paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right or legitimate interest in the domain name in dispute.

Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy requires the Complainant to prove registration as well as use in bad faith of the disputed domain names.

Considering the worldwide fame of the Complainant’s trademark “AIR FRANCE” it is not likely that any trader could choose to use it without seeking to create the impression of association with the Complainant. The Panel finds that the Respondent must have been aware of the Complainant’s trademarks while registering the domain name in dispute. This finding leads to the conclusion that the domain name in dispute has been registered in bad faith.

Considering the question if the disputed domain name is being used in bad faith it must be taken into account that it is used for a website containing a number of hyperlinks to websites offering travel services (i.e. airline services). These websites are owned by competitors of the Complainant which can mislead consumers. The Panel agrees to the allegation that the Respondent must bear full responsibility for the content of the related website, even if it is not directly controlled by him.

Accordingly, the Panel finds that the Complainant has satisfied 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 name <airfranceaccess.info> be transferred to the Complainant.

Marcin Krajewski
Sole Panelist

Dated: May 12, 2005