The Complainant is Comair Limited of Bonaero Park, South Africa, represented by Adams & Adams Attorneys, South Africa.
The Respondent is John Bonk of Collierville, Tennessee, United States of America.
The disputed domain name <kululaair.com> is registered with Moniker Online Services, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 23, 2009. On January 23, 2009, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the disputed domain name. On January 24, 2009, Moniker Online Services, LLC transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on January 30, 2009. The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 5, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was February 25, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 26, 2009.
The Center appointed Alain Bensoussan as the sole panelist in this matter on March 5, 2009. 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.
The Complainant is a South African charter flight operator. It launched South Africa's first low-fare carrier in July 2001 under the name kulula.com. The Complainant extended its activities to related car rental, accommodation and chauffeur drive services.
Ever since, the Complainant has been filing trademarks composed with KULULA in South Africa and in other African countries.
The Complainant has provided evidence that it is currently owner of the following Trademark Registrations:
- South African Trademark Registration KULULA No.2001/10306 filed on June 14, 2001, in class 37;
- South African Trademark Registration KULULA No. 2001/10307 filed on June 14, 2001, in class 39;
- South African Trademark Registration KULULA No. 2001/10308 filed on June 14, 2001, in class 42;
- South African Trademark Registration KULULA.COM/CARS No. 2002/05945 filed on May 2, 2002, in class 37;
- South African Trademark Registration KULULA.COM/CARS No. 2002/05947 filed on May 2, 2002, in class 42;
- South African Trademark Registration KULULA No. 2002/18877 filed on November 28, 2002, in class 9;
- South African Trademark Registration KULULA No. 2002/18878 filed on November 28, 2002, in class 12;
- South African Trademark Registration KULULA No. 2002/18879 filed on November 28, 2002, in class 16;
- South African Trademark Registration KULULA No. 2002/18880 filed on November 28, 2002, in class 25;
- South African Trademark Registration KULULA No. 2002/18881 filed on November 28, 2002, in class 35;
- South African Trademark Registration KULULA No. 2002/18882 filed on November 28, 2002, in class 36;
- South African Trademark Registration KULULA No. 2002/18883 filed on November 28, 2002, in class 38;
- South African Trademark Registration KULULA No. 2002/18884 filed on November 28, 2002, in class 41;
- South African Trademark Registration KULULA No. 2002/18885 filed on November 28, 2002, in class 43;
- South African Trademark Registration KULULA No. 2002/18886 filed on November 28, 2002, in class 45.
The domain name was registered on January 15, 2008.
On July 24, 2008, the Complainant's counsel sent a cease and desist letter to the domain name owner. The letter reminded him of Complainant's rights and asked him to transfer the domain name to the Complainant.
No answer was given to this letter.
The domain name was then transferred to the Respondent.
In the Complainant's view, the domain name is identical or confusingly similar to the term “kulula” which means “easy” in zulu in which it has statutory and common law rights.
The Complainant alleges that the Respondent has no rights or legitimate interests in respect of the domain name since, to the knowledge of the Complainant, he has no statutory rights in the KULULA trademark.
The Complainant further states that its KULULA trademark is well-known and that the domain name points to a website on which there are links to various other websites offering airline tickets, accommodation and care hire.
Finally, the Complainant concludes that the domain name was registered and is being used in bad faith since it wholly incorporates its well-known KULULA trademark and as a result diverts consumers to the Respondent's website.
As a consequence, the Complainant seeks the transfer of the domain name to it.
The Respondent did not reply to the Complainant's contentions.
According to paragraph 4(a) of the Policy, the domain name can be transferred to the Complainant if the latter proves each of the three following elements:
“(i) [the] domain name is identical or confusingly similar to a trademark or service mark in which [the Complainant] has rights; and
(ii) [the Respondent has] no rights or legitimate interests in respect of the domain name; and
(iii) [the] domain name has been registered and is being used in bad faith”.
With this in mind, the Complainant's contentions will now be examined by the Panel.
The Complainant has proved that it owns rights in its KULULA trademarks, at least in South Africa. The fact that those trademark rights do not cover the United States, country of the Respondent, is not dispositive since there is no such requirement in the Policy (see also WIPO Overview of WIPO Panel Views on Selected UDRP Questions, 1.1).
The domain name incorporates the whole KULULA trademark with the addition of the term “air”, descriptive of the Complainant's activity.
The generic top level domain “.com”, which is a technical requirement of the domain name system, is typically not taken into account when assessing the identity or similarity between the disputed domain name and the Complainant's trademark (DZ Bank AG v. Bentz, WIPO Case No. D2006-0414).
As a consequence, the Panel finds that the domain name is confusingly similar to the Complainant's trademark.
The Policy provides that the Complainant must prove each of the elements in paragraph 4(a) and, in particular, that the Respondent has no rights or legitimate interests in respect of the domain name (paragraph 4(a)(ii)). The difficulty of proving a negative fact (i.e. the fact that the Respondent lacks any rights or legitimate interests) must nevertheless be taken into account by the Panel when assessing whether paragraph 4(a)(ii) has been satisfactorily proved.
It appears that the Complainant has not authorized the Respondent to use its KULULA trademarks.
Having reviewed the case file, the Panel finds that the Complainant has made a prima facie showing of the lack of the Respondent's rights or legitimate interests. The Complainant's burden of proof being met, the Respondent would have had to demonstrate his rights or legitimate interests so as to comply with paragraph 4(a)(ii) of the Policy (Croatia Airlines d.d. v. Modern Empire Internet Ltd, WIPO Case No. D2003-0455.).
Since the Respondent did not reply to the Complaint, the Panel finds also based on the Panel's findings below, that the Respondent has no rights or legitimate interests in the domain name.
The Complainant claims that the domain name was registered in bad faith because its KULULA trademarks are well-known. It alleges that the domain name is being used in bad faith since it promotes links for competitors' services.
The KULULA trademark is composed of a term that could not have been chosen accidentally by the Respondent (who resides in the United States of America) and it is associated in the domain name with “air”, a word descriptive of the Complainant's field of activity.
Even though the Panel would have preferred to see further evidence that the Complainant's trademarks are well-known worldwide, the Panel notes that the Respondent obviously knew the Complainant's trademarks when he registered the domain name.
The Panel finds that the domain name was registered in bad faith.
The Complainant has alleged that the domain name is used in bad faith to divert the Internet traffic.
Paragraph 15 of the Rules provides that the Panel “shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. However, the Panel can “request, in its sole discretion, further statements or documents from either of the Parties” further to paragraph 12 of the Rules.
The Panel further notes Section 4.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions-
Consensus view: A panel may visit the internet site linked to the disputed domain name in order to obtain more information about the respondent and the use of the domain name. The panel may also undertake limited factual research into matters of public record if it feels that it needs that assistance in reaching a decision. If the panel feels that it requires further information to make a decision in a proceeding then it can issue a panel order to the parties.
Relevant decisions:
Société des Produits Nestlé SA v. Telmex Management Services, WIPO Case No. D2002-0070, Transfer.
Howard Jarvis Taxpayers Association v. Paul McCauley, WIPO Case No. D2004-0014, Denied.
The Panel notes that the website linked to the disputed domain name contains various links on cheap flight services and a picture of an airplane.
The Panel therefore considers that the domain name is intentionally used to attract Internet users and to obtain a more important commercial gain through the sponsored links presented on the website.
The Panel finds that such a behavior constitutes evidence of use of the domain name in bad faith according to paragraph 4(b)(iv) of the Policy.
Both registration and use of the domain name have been done in bad faith.
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, <kululaair.com> be transferred to the Complainant.
Alain Bensoussan
Sole Panelist
Dated: March 18, 2009