WIPO Domain Name Decision: D2007-0014

WIPO

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Société Air France v. Paula O\’Rourke / WhoisProtector Inc.

Case No. D2007-0014

1. The Parties

The Complainant is Société Air France of Roissy, France, represented by Meyer & Partenaires, France.

The Respondents are Paula O\’Rourke of San Francisco, California and Chicago, Illinois, United States of America, and WhoisProtector Inc. of Vancouver, British Columbia, Canada (collectively referred to as “the Registrant”).

2. The Domain Name and Registrar

The disputed domain name <airfrancestinks.com> is registered with DomainPeople, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 5, 2007. On January 8, 2007, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name at issue. On January 16, 2007, the Registrar transmitted by email to the Center its verification response confirming that WhoisProtector Inc. was listed as the registrant but providing the name of the apparent underlying/beneficial registrant as Paula O\’Rourke. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed amendments to the Complaint on January 19 and 23, 2007. The Center verified that the Complaint together with the amendments to 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 January 24, 2007. In accordance with the Rules, paragraph 5(a), the due date for the Response was February 13, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 15, 2007.

The Center appointed William Peter Knight as the sole panelist in this matter on March 2, 2007. 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 <airfrancestinks.com> domain name was registered on September 3, 2006.

The Complainant is well known as a French air carrier which, according to the Complaint, traces its origins to 1933. It is the owner of the trademark AIR FRANCE in many countries, including France (No. 1,703,113), the United States (No. 610072), and Canada (No. 531597).

The Complainant has registered in its name a number of domain names containing the word “Air France”, including the following:

<airfrance.com>;

<airfrance.fr>;

<airfrance.us>;

<airfrance.ca>;

<airfrance.net>;

<airfrance.org>; and

<airfrance.biz>

by means of which the Complainant provides information and services in a great number of different languages. In short, “Air France” is a very strongly used identifier of the Complainant, known and recognized around the world.

The Respondent’s <airfrancestinks.com> domain name is not being used at all, other than as a domain name parked with Hostway Corporation, which uses it to offer links to various other links, mostly relating to air travel, including to the Complainant’s website, although it must be said that this is by the most indirect route, the site being devoted primarily to linking users to other service providers.

The Complainant does not provide any evidence of any attempt to contact the Respondent or any attempt by the Respondent to contact it, but argues that the abusive nature of the registration of this domain name should be regarded as self-evident.

5. Parties’ Contentions

A. Complainant

In accordance with paragraph 4(a) of the Policy, the Complainant asserts, inter alia, as follows:-

(i) that <airfrancestinks.com> is confusingly similar to the Complainant’s name and registered trademarks;

(ii) that the Respondent has neither conceivable rights or legitimate interests in respect of the subject domain name; and

(iii) that the Respondent’s domain name has been registered and is being used in bad faith.

The Complainant’s assertions in respect of (i) and (ii) are supported, in short, by the obvious similarity between the dominant element in the Respondent’s domain name “airfrance”, with the mere addition of the derogatory English slang word “stinks”, combined with no apparent purpose or use of commentary or criticism of the Complainant. As in the case of the domain name <airfrancesucks.com>, the subject of the decision in Société Air France v. Virtual Dates, Inc., WIPO Case No. D2005-0168, the only apparent purpose and use of the Respondent’s domain name is to point to a pay-per-click hosting service offering, in the main, competing services.

In support of (iii), the Complainant asserts that registration and use in bad faith is evidenced by the fact of the Respondent must have registered the subject domain name in circumstances where the Respondent knew full well of the Complainant’s overwhelming legal rights to the mark AIR FRANCE and has made no legitimate use of the name. Since the Respondent has not made any use of the disputed domain as a forum for genuine discussion or opposition to something relevant to the Complainant, the Complainant contends that the Respondent had no legitimate interest in registration of the domain name, nor has the domain name been used in good faith.

B. Respondent

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

6. Discussion and Findings

The original registrant identity and subsequent change described above suggest that this is a case in which a privacy service may be in use, and that an underlying or beneficial registrant of the disputed domain name may exist.

Previous panels have for example in comparable cases been prepared to treat both the initially listed registrant and the subsequently disclosed registrant as the Respondent. See e.g., TDS Telecommunications Corporation v. Registrant [20758] Nevis Domains and Registrant [117460] Moniker Privacy Services, WIPO Case No. D2006-1620 and WWF-World Wide Fund for Nature aka WWF International v. Moniker Online Services LLC and Gregory Ricks, WIPO Case No. D2006-0975.

In the present case, WhoisProtector Inc. does appear to have been correctly identified in the Complaint as the listed registrant of record in the Whois at the time the Complaint was filed. The Registrar appears to have subsequently disclosed the identity of the underlying/ beneficial registrant, Paula O\’Rourke, who has also been named as a Respondent by the Complainant in the amended Complaint. Accordingly, it is in the Panel’s view appropriate for both of these to be included as Respondent in the present case.

The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy.

However, the Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. The Respondent cannot be in a better position by failing to respond than if the Respondent had chosen to take advantage of the opportunities afforded to them, expressly, by paragraph 4(c) of the Policy.

Paragraph 15(a) of the Rules instructs the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. In the absence of any response from the Respondent, the onus upon the Complainant will be satisfied if a conclusion which is capable of being drawn from the evidence provided by the Complainant is not contradicted by the Respondent. See Alcoholics Anonymous World Services, Inc. v. Lauren Raymond, WIPO Case No. D2000-0007; Ronson Plc v. Unimetal Sanayi ve Tic. A.S., WIPO Case No. D2000-0011, among numerous other decisions.

A. Identical or Confusingly Similar

It is clear that the Complainant is the owner of the AIR FRANCE trademark, through registration of the trademark and use throughout the world.

With great respect, the Panel adopts the reasoning of the majority of decisions in the so-called “sucks cases” relevant to this area, including the Virtual Dates decision referred to above, the decision in Wachovia Corporation v. Alton Flanders, WIPO Case No. D2003-0596, and, most recently, Wal-Mart Stores, Inc. v. xc2, WIPO Case No. D2006-0811. In this Panel’s view, the mere addition of a pejorative term word before and/or after a complainant’s trademark will not be sufficient to distinguish the disputed domain name if the dominant impression given by the disputed domain name remains the complainant’s trademark. This is even more so where “slang” - which often has a particular cultural or linguistic meaning not evident to speakers of other languages - is the added component. This would be illustrated to English speakers if they were to see the domain names <airfrancepue.com> or <airfrancepete.com>.

The Panel finds that the domain name <airfrancestinks.com> is confusingly similar to the Complainant’s famous mark AIR FRANCE and, accordingly, Policy, paragraph 4(a)(i) is satisfied in this case.

B. Rights or Legitimate Interests

The Complainant’s name and mark is widely known throughout the world. The Respondent was entitled, and had every opportunity, to demonstrate some right or legitimate interest with respect to the subject domain name, and Policy, paragraph 4(c) gives good examples of how the Respondent could have done so. The Respondent has given no explanation.

No effort has been made by the Respondent to use the disputed domain name for any purpose which might explain its choice. The Respondent’s use of the <airfrancestinks.com> domain name is not for the purpose of informing the public, or any other form of commentary which might serve to explain Respondent’s interests, but rather to attract those who might be interested in the Complainant, for one reason or another, and to direct them to other service providers.

The Panel, therefore, agrees with the Complainant’s submission that the Respondent does not have any rights or legitimate interests in respect of the domain name <airfrancestinks.com>.

C. Registered and Used in Bad Faith

It is evident that the Respondent must have been aware of the prior rights of the Complainant in its trademark AIR FRANCE and chose a domain name which was identical or confusingly similar for some reason. The Respondent’s subsequent conduct would not indicate that the purpose was legitimate comment, complaint or debate.

The Complainant has asserted, without contradiction from the Respondent, that the Respondent’s purpose must have been to provoke an offer from the Complainant to acquire the disputed domain name for valuable consideration far in excess of out of pocket expenses or, at least, to generate gain from internet traffic by diverting to service providers other than the Complainant.

Certainly, the Respondent has not made bona fide use of the disputed domain name since registration, as found above.

In the absence of any evidence to the contrary, the Panel finds that the Respondent registered and has used the disputed domain name in bad faith and, accordingly, Policy, paragraph 4(a)(iii) is satisfied in this case.

7. Decision

In the light of the findings in paragraph 6 above, the Panel concludes that:

- the subject domain name <airfrancestinks.com> is confusingly similar to the trademark AIR FRANCE belonging to the Complainant; and

- the Respondent has no rights or legitimate interests in the subject domain name; and

- the subject domain name has been registered and is being used in bad faith.

Accordingly, the Panel orders in accordance with paragraphs 4(i) of the Policy and 15 of the Rules that the subject domain name <airfrancestinks.com> be transferred to the Complainant.

William Peter Knight
Sole Panelist

Dated: March 16, 2007