WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Société Air France v. Whois Privacy Contact, Netim / Buddhika Athauda

Case No. D2018-1206

1. The Parties

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

The Respondent is Whois Privacy Contact, Netim of Lille, France / Buddhika Athauda of Kandy, Sri Lanka, self-represented.

2. The Domain Name and Registrar

The disputed domain name <airfrance.blog> (the “Disputed Domain Name”) is registered with NETIM SARL (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 30, 2018. On May 30, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On May 31, 2018, 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 31, 2018 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 June 7, 2018. On May 31, 2018, the Center received an email communication from the Respondent.

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 June 8, 2018. In accordance with the Rules, paragraph 5, the due date for Response was June 28, 2018. The Response was filed with the Center on June 10, 2018.

The Center appointed Nick J. Gardner as the sole panelist in this matter on June 18, 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.

On June 13, 2018 the Complainant filed a Supplemental Filing (the “Supplemental Filing”). On June 15, 2018 the Respondent sent an email to the Center which said “Yes, I can confirmed my response as my complete one. There is another reply sent by complainant on this case. Anyhow what I need to tell on this is, this is still a developing web and if they know the term ʻDevelopingʼ they will not send that kind of complaint again. No worries, looking forward a positive reply”.

4. Factual Background

The Complainant is one of the largest passenger and cargo airlines in the world. It was originally created in 1933 by a merger of several French airlines. Nowadays it is a member of the Air France-KLM group. In 2016, the AIR FRANCE-KLM group carried more than 93.4 million passengers with its fleet of 534 aircraft serving 328 cities in 118 countries, representing 2200 daily flights with an annual turnover of EUR 24.8 billion.

The Complainant owns numerous registered trademarks consisting of or including the terms AIR FRANCE, including for example AIR FRANCE, French trademark, Reg. No. 1703113, Reg. Date October 31, 1991, covering International Classes 1 through to 45. These trademarks are referred to as the AIR FRANCE trademark in this decision.

The Complainant operates its international web portal at “www.airfrance.com”.

The Disputed Domain Name was registered on October 9, 2017. At the time the Complaint was filed the Disputed Domain Name resolved to a website which reproduced the Complainant’s logo prominently and contained a series of travel-related articles as well as sponsored links to third party holiday and travel-related providers. Evidence included in the Supplemental Filing shows that following the filing of the Complaint the website was substantially changed and the Complainant’s logo was removed, the third party links no longer appeared and a disclaimer was introduced. As at the date of this decision the Disputed Domain Name does not resolve to any website.

5. Parties’ Contentions

A. Complainant

The Complainant’s contentions can be summarized as follows:

The Disputed Domain Name is identical or at least confusingly similar to the AIR FRANCE trademark.

The Respondent has no rights or legitimate interests in the term AIR FRANCE.

The Disputed Domain Name was registered and is being used in bad faith. The Complainant says that the content of the website to which the Disputed Domain Name resolved at the time the Complaint was filed had the following features. It comprised articles which are reproductions of those of various specialized English-speaking websites, probably displayed automatically through information feeds (such as RSS). These articles all relate to travel, and are reproduced in combination with sponsored advertisement banners. The trademarks and logo of the Complainant are reproduced in the header of the page and in the title tag of the page. The sponsored links redirect users to third party commercial websites, including websites offering services competing with those of the Complainant. It is well established in the UDRP that the intentional aim for such remuneration obviously does not constitute a bona fide practice. The website is clearly intended to confuse visitors. In addition there is no disclaimer nor information details of the website’s publisher. The Respondent’s motives are either (i) to generate increased web traffic to the Respondent's website for the purpose of establishing sponsored links on the Respondent's website, and to generate paid advertising revenue per click or the like, or (ii) or to realize a substantial profit by expecting an unsolicited purchase offer from the Complainant. Either of these amounts to bad faith registration and use under the Policy.

In its Supplemental Filing the Complainant says the way in which the Respondent changed his website following receipt of the Complaint is intended to deceive the Panel and is further evidence of the Respondent’s bad faith, and refers to various previous UDRP cases dealing with this situation (these are discussed below).

B. Respondent

The Respondent has filed a lengthy Response which in essence says that his website is a personal travel-related blog which is not produced for profit and which does not violate any rights of the Complainant. He says advertising content was included only when he was testing the site and will be removed in future. The general thrust of his arguments is illustrated by the following extract from the Response:

“As an individual who is interested in traveling and tourism industry my hobby is to design websites to provide references regarding tourist destinations, hotels and reviews of the travelers. As France is one of my most favorite countries therefore I wanted to create a blog by having special focus on France. While gathering information about France I came across a website known as air France which provided some travel information in blog format.

I wanted to create a travel blog by highlighting that Airfrance is the best airline in the world to include information about travel destinations and reviews about it.

This travel blog has been created only for the informative purpose and not for any commercial activities and it has been clearly mentioned in my website that this blog has no relationship with airfrance airline. The purpose of creating such a blog is only for my hobby.

The theme I have used to create this blog has been taken from Themeforest and it includes demo details and customized styles. So at the stage of taking screenshots which the complainant has sent includes those demo data and I also tested google ads and banner ads during that time in order to test this theme. Going forward I will assure none of the said ads will be used in future for this blog.”

6. Discussion and Findings

Preliminary Matters

The Panel will admit the Supplemental Filing. It deals with matters that could not be dealt with in the Complaint as they occurred after the Complaint was filed. For reasons discussed below the Panel consider those matters to be relevant to its findings and the Respondent has been given an opportunity to respond to the Supplemental Filing and did so (see above).

The Panel notes this is a case where one of the named Respondents (Whois Privacy Contact, Netim) appears to be a privacy or proxy registration service. It disclosed details of contact details given by the Respondent when registering the Disputed Domain Name. The Panel in this case adopts the approach of most UDRP panels, as outlined in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at Section 4.4.5, as follows:

“Panel discretion

In all cases involving a privacy or proxy service and irrespective of the disclosure of any underlying registrant, the appointed panel retains discretion to determine the respondent against which the case should proceed.

Depending on the facts and circumstances of a particular case, e.g., where a timely disclosure is made, and there is no indication of a relationship beyond the provision of privacy or proxy registration services, a panel may find it appropriate to apply its discretion to record only the underlying registrant as the named respondent. On the other hand, e.g., where there is no clear disclosure, or there is some indication that the privacy or proxy provider is somehow related to the underlying registrant or use of the particular domain name, a panel may find it appropriate to record both the privacy or proxy service and any nominally underlying registrant as the named respondent.”

In the present case the Panel finds the substantive Respondent to be Buddhika Athauda – and references to the Respondent should be understood as being to that person.

Substantive Matters

To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that:

(i) the Disputed Domain Name is identical with or confusingly similar to a trademark or service mark in which the Complainant has rights;

(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.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has rights in the AIR FRANCE trademark. The Disputed Domain Name is identical to the AIR FRANCE trademark – the omission of the space between the two words is not a material difference given it is a technical requirement of the domain naming system. It is not necessary in this case to have regard to the use of the gTLD “.blog” in assessing identity or confusing similarity (the Panel agrees with the approach set out in paragraph 1.11 of WIPO Overview 3.0 in this regard).

Accordingly the Panel finds that the Disputed Domain Name is identical to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled.

B. Rights or Legitimate Interests

The term “airfrance” is clearly being used in the Disputed Domain Name because of its association with the Complainant. It does not have any other meaning and the Respondent does not seek to suggest otherwise.

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name:

(i) before any notice to the Respondent of the dispute, the Respondent’s 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) the Respondent has been commonly known by the 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 domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The Complainant has not authorised, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the AIR FRANCE trademark. The Complainant has prior rights in the AIR FRANCE trademark which precede the Respondent’s registration of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see for example, Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455).

The Respondent in effect says that (iii) above applies as he is writing a bona fide travel related blog for noncommercial purposes. Even if the Respondent’s case is accepted (as to which see C below) the Panel does not consider this establishes a legitimate or fair use of the term “airfrance”. There are no doubt any number of perfectly legitimate domain names the Respondent could use for a travel-related blog website. The use of the Complainant’s trademark in unadorned form is however not one of them – it is inherently confusing and suggests a blog that is written by or with the approval of the Complainant. The Respondent has not produced any convincing explanation of why he chose this name or why he has any legitimate reason for using a name that is identical to the Complainant’s trademark for his blog. Accordingly the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled.

C. Registered and Used in Bad Faith

In the present circumstances, the distinctive nature of the AIR FRANCE trademark, the extent of the reputation the Complainant enjoys in this trademark, the identical nature of the Disputed Domain Name to this trademark, and the lack of any credible explanation from the Respondent as to why he registered the Disputed Domain Name lead the Panel to conclude the registration and use was in bad faith.

In the present case, the Panel concludes the Respondent was aware of the Complainant’s AIR FRANCE trademark when he registered the Disputed Domain Name. He then linked that name to a website which purports to be a bona fide blog site which comprised a series of articles that have been copied (probably by some automated process) from third party sites. This was done in a manner which used the Complainant’s AIR FRANCE trademark and logo and presented the site as being that of the Complainant, or as authorised by the Complainant. No doubt the Respondent would earn revenue as and when visitors to the site clicked on any of the sponsored links. This type of activity is manifestly within paragraph 4(b)(iv) of the Policy as one of the non-exhaustive list of factors evidencing registration and use in bad faith:

“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location”.

The Panel does not accept the Respondent’s explanation that this was all part of some sort of noncommercial hobby seeking to praise the Complainant by publishing a travel related blog under its name. The Panel is conscious that proceedings under the UDRP are of a limited and restricted nature, do not involve oral hearings, discovery or cross examination, and hence are only applicable to clear cut cases, and it is not usually appropriate to decide disputed questions of fact or matters of truth or falsehood. That does not however mean the Panel cannot reach a conclusion as to the veracity of a case that is being advanced where the only evidence is inherently not credible, and which is not supported by relevant corroborative or third-party evidence. The Panel considers this to be such a case for the following reasons:

1. The Respondent’s website prior to the Complaint being filed was manifestly commercial and contained numerous sponsored links.

2. There is no credible reason as to why such sponsored links would have been included as part of a “testing” process if the Respondent was genuinely seeking to create a personal hobby related blog site.

3. There is no credible reason why the Respondent needs to use the Complainant’s name in connection with a general travel related blog.

4. The Respondent has provided no explanation as to why he wants to extol the Complainant and its services or to promote what purports to be a general travel-related blog under the specific trademark of the Complainant.

5. It seems much more likely that the Respondent’s intention was to attract visitors who were searching for the Complainant or material about its services and then earn revenue by the use of sponsored links which directed such visitors to competitors of the Complainant.

The above analysis applies to the Respondent’s website as it existed when the Complaint was filed. In addition the Panel agrees with the Complainant that the changes the Respondent made to his website following the filing of the Complaint have all the hallmarks of steps taken to try to provide a legitimate explanation for what was an illegitimate use of the Complainant’s trademark. The Respondent removed the logos and widespread use of the Respondents AIR FRANCE trademark from the website and added a not particularly prominent disclaimer and contact details. The Panel agrees that this type of change after a Complaint has been received is itself further evidence of bad faith – see the following cases:

Philip Morris Products S.A. v. Whois Agent, Doman Protection Services, Inc. / P. Poon, Enc Electronics, WIPO Case No. D2018-0823: “The Panel also agrees with Complainant that the change in website content located at the disputed domain name, and in particular the removal of the associated Facebook page, following the notice of this Complaint, further underscores Respondent's bad faith.”

Philip Morris Products S.A. V. Tony Mak, WIPO Case No. D2017-1623: “The addition of a disclaimer, after the receipt of the Complaint to clarify the lack of any relationship to the Complainant, does not reduce the risk of the confusion and it is a clear evidence of the bad faith use.”

J. Choo Limited V. panluzhong, WIPO Case No. D2016-0252: “It further appears that since the institution of this proceeding, the Respondent has changed the content of its websites utilizing the disputed domain names. However, in these circumstances, the mere alteration, or change in character, of website content does nothing to change the Respondent's bad faith registration and use of the disputed domain names.”

SelectHealth, Inc. V. James E Risinger II, WIPO Case No. D2012-2275: “Further, in response to receiving a demand letter sent on Complainant's behalf on October 17, 2012, which letter gave notice of Complainant's intent to file this Complaint, Respondent changed the website at the Domain Name in an effort to appear to make legitimate use of the Domain Name. Altering a disputed webpage in response to a UDRP complaint is evidence of bad faith.”

As a result, the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith. Accordingly, the third condition of paragraph 4(a) of the Policy has been fulfilled.

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, <airfrance.blog>, be transferred to the Complainant.

Nick J. Gardner
Sole Panelist
Date: July 2, 2018