WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Air France v. Jeffrey Gosda, Gosda Consulting, LLC
Case No. D2019-1188
1. The Parties
The Complainant is Société Air France, France, represented by Meyer & Partenaires, France.
The Respondent is Jeffrey Gosda, Gosda Consulting, LLC, United States of America (“United States”).
2. The Domain Name and Registrar
The disputed domain name <airfranceva.com> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 23, 2019. On May 23, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 23, 2019, the Registrar 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. The Center sent an email communication to the Complainant on May 27, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 28, 2019.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 31, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 20, 2019. The Respondent did not file a formal response.
The Center appointed Reynaldo Urtiaga Escobar as the sole panelist in this matter on July 1, 2019. 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 proceeding is conducted in English, this being the language of the registration agreement for the disputed domain name, as confirmed by the Registrar.
4. Factual Background
The Complainant is amongst the 20 biggest airlines in the world1 . In 2018, the Complainant carried 51.4 million passengers to 195 destinations in 92 countries.
The Complainant holds numerous AIR FRANCE trademark registrations, including but not limited to:
International trademark registration No. 8283342 , registered on October 20, 2003, in multiple classes. This International trademark registration is in good standing and takes effect in the United States, the country of Respondent on WhoIs.
The Complainant’s website is located at “www.airfrance.com”
The disputed domain name was registered by the Respondent on November 25, 2018. The disputed domain does not resolve to an active website.
5. Parties’ Contentions
A. Complainant
In summary, the Complainant contends as follows:
i) The disputed domain name incorporates letter-by-letter the Complainant’s AIR FRANCE mark;
ii) The “va” letters added to the disputed domain name are evocative of Complainant’s business as they may stand for “virtual assistant”, “value added”, “vulnerability analyzer”, etc. or refer to various concepts such as the manoeuvring speed of an aircraft;
iii) In the circumstances, the disputed domain name should be deemed confusingly similar to the Complainant’s AIR FRANCE mark;
iv) The Complainant did not authorize the Respondent to use the AIR FRANCE mark in the disputed domain name or otherwise;
v) To the Complainant’s best knowledge, the Respondent has never been known as “Airfrance” or “Air France”;
vi) The disputed domain name is presently inactive, as evidenced by the following message: “Unable to connect to database [Access denied for user ‘gosdacou_af’@’localhost’ to database ‘gosdacou_airfranceva’]”;
vii) The fact that MX records for the disputed domain name are already operational confirms a potential risk that the Respondent may send fraudulent emails through “[…]@airfranceva.com”addresses, and it is hard to conceive any legitimate use of said email addresses by the Respondent;
viii) The Respondent is not making a bona fide offering of goods or services under the disputed domain name pursuant to Policy paragraph 4(c)(i) nor a legitimate noncommercial or fair use thereof according to Policy paragraph 4(c)(iii);
ix) It is obvious that the Respondent registered the disputed domain name precisely because it knew the well-known character of the AIR FRANCE mark;
x) Given that the disputed domain name resolves to a page with an error message, the disputed domain name must be deemed to have been used in bad faith on passive holding grounds.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed in this administrative proceeding, the Complainant must prove that:
(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 was registered and is being used in bad faith.
These elements are discussed in turn below. In considering these elements, paragraph 15(a) of the Rules provides that the Panel shall decide the Complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules, and any other rules or principles of law that the Panel deems applicable.
A. Identical or Confusingly Similar
The first element has a low threshold for it merely serves as a standing requirement under the Policy. See section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) (the standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant’s trademark and the disputed domain name).
The Complainant holds International trademark registration No. 828334 for AIR FRANCE, with a grant date of October 20, 2003, which predates registration of the disputed domain name by more than 15 years.
The disputed domain name is composed of the Complainant’s AIR FRANCE mark followed by the letters “va”.
The Complainant’s well-known mark is easily recognized within the disputed domain name despite the affixing of alphabetical elements like “va”. According to section 1.8 of the WIPO Overview 3.0, where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.
The “.com” generic Top-Level Domain is viewed here as a standard registration suffix and as such is disregarded for comparison purposes.
In the circumstances, the Panel holds that the disputed domain name is confusingly similar to the mark on which the Complaint is based.
The Complainant has therefore satisfied its burden of proof for this element of the Policy.
B. Rights or Legitimate Interests
The second element under the Policy is that the Respondent has no rights or legitimate interests in respect of the disputed domain name (Policy, paragraph 4(a)(ii)). Paragraph 4(c) of the Policy provides that “any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate [the Respondent’s] rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
As noted in section 2.1 of the WIPO Overview 3.0, the onus is on the Complainant to establish the absence of the Respondent’s rights or legitimate interests in the disputed domain name. However, because of the inherent difficulties in proving a negative, the consensus view is that the Complainant need only put forward a prima facie case that the Respondent lacks rights or legitimate interests. The burden of production then shifts to the Respondent to rebut that prima facie case (see also, e.g., World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles, WIPO Case No. D2000-1306).
The Respondent has not been authorized by the Complainant to use the AIR FRANCE mark in connection with the disputed domain name or otherwise. Likewise, there is no evidence in the file to indicate that the Respondent is commonly known by the disputed domain name.
The Complainant has put forward a prima facie case of the Respondent’s lack of rights or legitimate interests in the disputed domain name, while the Respondent did not allege, much less prove, that it has rights or legitimate interests under the Policy.
The Panel deems the above assertions of fact to be credible, and besides, they were uncontested by the Respondent. Ultimately, the Panel was unable to infer from the dossier any rights or legitimate interests of which the Respondent may avail itself.
Accordingly, the Panel is convinced that the Respondent does not possess rights or legitimate interests in the disputed domain name.
The Complainant has satisfied its burden of proof for this element of the Policy.
C. Registered and Used in Bad Faith
Pursuant to Policy, paragraph 4(a)(iii), in order to be granted relief, the Complainant must show that the disputed domain name was registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets forth the following non-exhaustive grounds of bad faith registration and use:
“(i) circumstances indicating that you [the respondent] have registered or 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 your [the respondent’s] documented out-of-pocket costs directly related to the domain name; or
(ii) you [the respondent] have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you [the respondent] have engaged in a pattern of such conduct; or
(iii) you [the respondent] have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you [the respondent] have intentionally attempted to attract, for commercial gain, Internet users to your [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your [the respondent’s] website or location or of a product or service on your [the respondent’s] website or location.”
When the Respondent registered the disputed domain name, it could not have been unaware of the Complainant’s well-known mark. See Société Air France v. Registration Private, Domains By Proxy, LLC / Name Redacted, WIPO Case No. D2018-0005 (given the worldwide well-known character of the AIR FRANCE trademarks, the panel finds that the respondent could not ignore the complainant’s trademark rights in AIR FRANCE when it registered the disputed domain name).
The Panel takes therefore the view that the disputed domain name’s registration was in bad faith since the Respondent misappropriated the goodwill and global recognition associated with the AIR FRANCE brand.
Moreover, the Respondent’s website is inactive, and the Panel finds plausible the Complainant’s contention that “[...]@airfranceva.com” email addresses may foreseeably be used by the Respondent to impersonate the Complainant in an attempt to scam Complainant’s customers (consumer fraud, criminal fraud) or steal their personal information (phishing).
Overall, in the Panel’s opinion, the Respondent took unfair advantage of AIR FRANCE, the Complainant’s well-known mark, which constitutes bad faith within the realm of the Policy. See paragraph 3.1 of the WIPO Overview 3.0 (bad faith under the UDRP is broadly understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant’s mark).
The Panel thus finds that the disputed domain name was registered and has been used in bad faith under the Policy.
The Complainant has discharged its burden in relation to paragraph 4(a)(iii) of the Policy.
7. Decision
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 <airfranceva.com> be transferred to the Complainant.
Reynaldo Urtiaga Escobar
Sole Panelist
Date: July 17, 2019
1 https://www.businessinsider.es/biggest-airlines-world-oag-2019-3?r=US&IR=T