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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Comair Limited v. PrivacyDotlink Customer 3769657 / Milen Radumilo

Case No. D2019-2467

1. The Parties

The Complainant is Comair Limited, South Africa, represented by Adams & Adams, South Africa.

The Respondent is PrivacyDotlink Customer 3769657, Cayman Islands, United Kingdom / Milen Radumilo, Romania.

2. The Domain Name and Registrar

The disputed domain name <kululaairlines.com> is registered with Uniregistrar Corp (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 9, 2019. On October 9, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 10, 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 October 18, 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 October 21, 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 October 29, 2019. In accordance with the Rules, paragraph 5, the due date for Response was November 18, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 19, 2019.

The Center appointed Nayiri Boghossian as the sole panelist in this matter on December 2, 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.

4. Factual Background

The Complainant owns trademark registrations for the trademark KULULA including International trademark registration No. 2003000034, registered on January 24, 2003.

The Respondent registered the disputed domain name on December 10, 2003. The disputed domain name resolves to a website displaying links related to the Complainant’s industry.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The Complainant owns various trademark registrations for the trademark KULULA in many countries such as Botswana, Kenya, Malawi, Namibia, South Africa, Uganda, Zambia and Zimbabwe. The oldest of these registrations dates back to 2001 and the Complainant has been making use of said trademark since then. The Complainant is a South African company which has been operating since 1946 offering airline services. It launched a low-fare air carrier under the trademark KULULA. The Complainant has registered the domain name <kulula.com> since 2001. The Complainant contends that the trademark KULULA qualifies as a well-known trademark. The Complainant contends that the dominant part of the disputed domain name is the Complainant’s trademark KULULA. The addition of the word “airlines” contributes to deceiving the public. The generic Top-Level Domain (“gTLD”) extension “com” does not serve in creating a distinction between the disputed domain name and the Complainant’s trademark.

The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant did not authorize the Respondent to use its trademark and the latter is not associated with the Complainant. There is no evidence that the Respondent has been or is commonly known by the name “Kulula” or that it has acquired any rights in the mark KULULA. The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services.

The Complainant contends that the disputed domain name was registered and is being used in bad faith. The Respondent must have been aware of the Complainant’s trademark given that it has registered the disputed domain name containing the word “airline”, which describes the Complainant’s business. The bad faith of the Respondent is evidenced by the fact that the Respondent has no real legitimate interests in the disputed domain name nor any connection with the Complainant. Further, the types of websites the disputed domain name resolves to demonstrate bad faith. Additionally, the Complainant submits that the Respondent’s conduct unfairly disrupts the Complainant’s business. The disputed domain name creates the impression that the Complainant and the Respondent are somehow associated and this is bad faith. Also, the Respondent is trying to benefit from the reputation of the Complainant’s trademark given that it is a well-known mark. The Respondent has intentionally attempted to attract traffic to its website through creating a likelihood of confusion with the Complainant’s trademark. This is done for commercial gain by using the pay-per-click system. Lastly, the Respondent is engaged in cybersquatting.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant owns trademark registrations for the trademark KULULA in many jurisdictions. The Panel is satisfied that the Complainant has established its ownership of the trademark KULULA.

The disputed domain name comprises the Complainant’s trademark KULULA combined with the dictionary word “airlines”, which does not prevent a finding of confusing similarity with the trademark KULULA. The trademark is clearly recognizable within the disputed domain name. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The gTLD “.com” should typically be ignored when assessing confusing similarity as established by prior UDRP decisions. See section 1.11 of the WIPO Overview 3.0.

Consequently, the Panel finds that the disputed domain name is confusingly similar to the trademark of the Complainant and that the Complainant has satisfied paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has made a prima facie showing that the Respondent does not have any rights or legitimate interests in the disputed domain name, particularly by asserting that it never authorized the Respondent to use its trademark as part of the disputed domain name.

The Respondent has not provided evidence of circumstances of the types specified in paragraph 4(c) of the Policy, or of any other circumstances, giving rise to rights or legitimate interests in the disputed domain name. In particular, the Panel notes that the disputed domain name resolves to a pay-per-click website displaying links related to the Complainant’s industry. The Panel does not find this to be a bona fide offering of goods or services within the meaning of the Policy.

Consequently, the Panel finds that the Complainant has met the requirement under the Policy of showing that the Respondent does not have any rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The element of bad faith is evidenced by the fact that the website to which the disputed domain name resolves contains pay-per-click links related to the service offered by the Complainant. Furthermore, the disputed domain name contains the word “airlines”, which is the industry of the Complainant. Hence, it must be that the Respondent was fully aware of the Complainant and its trademark and has registered and used the disputed domain name comprising the Complainant’s mark with the aim of attracting consumers to its website and with the intent of commercial gain, by creating the impression of being affiliated with the Complainant. Moreover, the word “airlines” reinforces the likelihood of confusion with the Complainant’s trademark given that the Complainant operates in the field of airlines.

Furthermore, the Respondent did not reply to the cease and desist letter of the Complainant and such conduct is considered as demonstrating bad faith. Lastly, the use of a privacy shield can be an indication of bad faith.

Such conduct falls squarely within the meaning of paragraph 4(b)(iv) of the Policy, and accordingly, the Panel finds that the Complainant has satisfied 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 <kululaairlines.com> be transferred to the Complainant.

Nayiri Boghossian
Sole Panelist
Date: December 16, 2019

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