The Complainant is WestJet Airlines Ltd. of Calgary, Alberta, Canada, represented by Gowlings WLG (Canada) LLP, Canada.
The Respondent is Lin Chun Da of Shenzhen, Guangdong, China.
The disputed domain name <westjet.online> is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 4, 2018. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 5, 2018, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding on June 8, 2018. On the same day, the Complainant submitted a request that English be the language of the proceeding. The Respondent submitted a request that Chinese be the language of the proceeding on June 9, 2018. The Complainant submitted a reply to that request on June 11, 2018.
The Center verified that the 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 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceedings commenced on June 14, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 4, 2018. The Respondent did not submit any formal response. The Center notified the Parties of the commencement of the Panel appointment process on July 5, 2018.
The Center appointed Matthew Kennedy as the sole panelist in this matter on July 11, 2018. 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 an international airline based in Canada that was founded in 1996. The Complainant offers scheduled services to more than 100 destinations in North America, Central America, the Caribbean and Europe. The Complainant has registered the trademark WESTJET in multiple jurisdictions, including Canadian trademark registrations numbers TMA480424 and TMA651001, registered on August 14, 1997 and October 20, 2005 respectively, and specifying goods and services in multiple classes. Those trademark registrations remain in effect. The Complainant operates its official website at “www.westjet.com” where it offers information about itself and offers travel booking services.
The Respondent is an individual located in Shenzhen, Guangdong, China. According to information provided by the Complainant, the Respondent has registered other domain names besides the disputed domain name, at least four of which wholly incorporate third party trademarks, namely <accumulo.online>, <appleshop.online>, <avro.online>, and <bwbank.online>.
The disputed domain name was registered or acquired by the Respondent on December 11, 2016. The disputed domain name is parked at a landing page in Chinese and English that announces that “the domain is for sale!” The disputed domain name is also advertised for sale at a broker’s website in English where Internet users can make offers on domains. The minimum offer for the disputed domain name is USD 99 and the seller’s asking price is USD 6,899.
The Complainant sent a cease-and-desist email to the Respondent, in English, on March 21, 2017. The Respondent replied on March 28, 2018, in English and Chinese, stating that he did not understand. The Complainant sent a follow-up email on June 26, 2017, to which the Respondent did not reply. The Complainant sent a further email on May 7, 2018, to which the Respondent replied the following day, in English only, alleging that he was going to use the disputed domain name to build a website but had not had time yet and also offering to sell the disputed domain name to the Complainant for one thousand dollars.
The disputed domain name is identical or confusingly similar to the Complainant’s WESTJET trademark. The disputed domain name wholly incorporates that trademark. The addition of a generic Top-Level Domain (“gTLD”) suffix is without legal significance in determining the issue of similarity.
The Respondent has no rights or legal interests in respect of the disputed domain name. There has never been any relationship between the Complainant and the Respondent. The Respondent is not licensed, or otherwise authorized, be it directly or indirectly, to register or use the WESTJET trademark in any manner whatsoever, including in, or as part of, a domain name. The Respondent is a classic cybersquatter as evidenced by its exorbitant offer to sell the disputed domain name. The Respondent’s activities as a whole completely undermine any claim of rights or bona fide interests.
The disputed domain name was registered and is being used in bad faith. The Respondent acquired the disputed domain name for the purpose of selling, renting, licensing, or otherwise transferring it to the Complainant for valuable consideration in excess of his actual costs in registering the disputed domain name. The Respondent is actively promoting the sale of the disputed domain name for USD 6,899.
The Respondent did not reply to the Complainant’s contentions.
Paragraph 11(a) of the Rules provides that “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” The Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.
The Complainant requests that the language of the proceeding be English. Its main arguments are that the disputed domain name is in English, that the Respondent has registered other domain names in English and that the Respondent’s email dated May 8, 2018 to the Complainant was in English, all of which supports the position that the Respondent is competent in, or at least familiar, with English, while the selection of Chinese as the language of the proceeding would cause an undue burden on the Complainant in terms of translation expenses and undue delay.
The Respondent requests that the language of the proceeding be Chinese. His main arguments are that his level of English is basic; that the website he used to register the disputed domain name was in Chinese; and that the selection of English as the language of the proceeding would be an obstacle to communication and cause him serious prejudice.
Paragraph 10(b) and (c) of the Rules require the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293.
The Panel observes that in this proceeding the Complaint was filed in English. The Panel notes that the parties’ correspondence prior to this dispute was in English and shows that the Respondent is indeed able to communicate in that language, despite his assertions to the contrary. In this circumstance, despite the fact that the Registration Agreement for the disputed domain name is in Chinese, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay, whereas selecting English as the language of the proceeding will not unfairly prejudice the Respondent.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. Nevertheless, the Panel will accept the Respondent’s email, filed in Chinese, without translation. The Panel would also have accepted a formal Response in Chinese or English, but none was filed.
Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Based on the evidence provided, the Panel finds that the Complainant has rights in the WESTJET trademark.
The disputed domain name wholly incorporates the Complainant’s WESTJET trademark. The only additional element is the gTLD suffix “.online”. A gTLD suffix generally has no capacity to distinguish a domain name from a trademark for the purposes of the Policy.
Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy.
Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the Respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:
“(i) before any notice to [the respondent] of the dispute, [the respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or
(ii) [the respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the respondent has] acquired no trademark or service mark rights; or
(iii) [the respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The Panel has already found that the disputed domain name is confusingly similar to the Complainant’s WESTJET trademark. The Complainant states that there has never been any relationship between it and the Respondent and, further, that the Respondent is not licensed, or otherwise authorized, to register or use, the WESTJET trademark. The Panel notes that “westjet” is not a dictionary word. The disputed domain name resolves to a landing page that offers it for sale. These circumstances show that the Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services for the purposes of the Policy. The Panel does not find that the Respondent’s use falls within the first circumstance of paragraph 4(c) of the Policy.
The Respondent’s name is “Lin Chun Da” not “Westjet”. There is no evidence indicating that the Respondent has been commonly known by the disputed domain name as envisaged by the second circumstance of paragraph 4(c) of the Policy.
The disputed domain name resolves to a landing page that offers it for sale. The disputed domain name is also offered for sale on a broker’s website. This is not a legitimate noncommercial or fair use of the disputed domain name within the terms of the third circumstance of paragraph 4(c) of the Policy.
In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent did not rebut that case because he did not respond to the Complainant’s contentions.
Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy.
Paragraph 4(b) of the Policy provides that certain circumstances shall be evidence of the registration and use of a domain name in bad faith. The first of these is as follows:
“(i) circumstances indicating that [the Respondent has] registered or [the Respondent has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [the Respondent’s] documented out-of-pocket costs directly related to the domain name.”
With respect to registration, the Panel observes that the Respondent registered a domain name that, apart from the gTLD, is identical to the Complainant’s WESTJET trademark. “Westjet” is not a dictionary word. The Respondent registered the disputed domain name years after the Complainant registered its trademark and acquired a reputation through promotion and use in connection with its travel services. The Respondent has registered at least four other domain names that also wholly incorporate third party trademarks within the “.online” gTLD. The Respondent does not offer any explanation as to why he chose to register the name “Westjet” in the disputed domain name. Therefore, on balance, the Panel finds that the Respondent deliberately chose to register the disputed domain name in bad faith.
With respect to use, the Panel notes that the disputed domain name resolves to a landing page that merely offers the domain name for sale; that the disputed domain name is advertised for sale on a broker’s website with an asking price of USD 6,899 and that the Respondent also offered to sell the disputed domain name to the Complainant for USD 1,000. These circumstances indicate that the Respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name. Consequently, the Panel finds that the facts of this case fall within the circumstances set out in paragraph 4(b)(i) of the Policy.
Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <westjet.online> be transferred to the Complainant.
Matthew Kennedy
Sole Panelist
Date: July 14, 2018