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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Sociйtй Air France v. Ali Ferhat Kurtulus Levent Mert/Erdem Yavuz

Case No. D2004-0759

1. The Parties

The Complainant is Sociйtй Air France, Roissy CDG Cedex, France, represented by Meyer & Partenaires, France.

The Respondent is Ali Ferhat Kurtulus Levent Mert/Erdem Yavuz, Datca Iskele, Mugla, Turkey, represented by Erdem Yavuz.

2. The Domain Name and Registrar

The disputed domain name <afklm.com> is registered with Go Daddy Software.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 20, 2004. On September 21, 2004, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the disputed domain name. On September 21, 2004, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 Paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 24, 2004. In accordance with the Paragraph 5(a) of the Rules, the due date for Response was October 14, 2004. The Response was filed with the Center on October 13, 2004.

The Center appointed Irina V. Savelieva as the sole panelist in this matter on October 19, 2004. 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 Paragraph 7 of the Rules.

On November 1, 2004, the Panel issued the Procedural Order No 1 ordering the Complainant to submit additional documents. The Complainant submitted the documents on November 19, 2004. On November 23, 2004, the Panel informed the Parties that the projected date for its decision was December 3, 2004.

4. Factual Background

The Complainant Sociйtй Air France (AF) is one of the world’s major airlines and its origin is traced back to 1933. It is an airline passenger and a freight carrier company, established under the laws of France and operating in many countries of the world. Sociйtй Air France is one of the founding members of the SkyTeam Alliance formed in 2000, which currently unites 9 major international airlines: Delta Airlines, Continental Airlines, Aero Mexico, Czech Airlines, Alitalia, Korean Airlines, Northwest Airlines and KLM. In the framework of the SkyTeam Alliance Air France and KLM officially announced their merger on September 29, 2003, and prior to that the intended merge had been discussed in the media worldwide.

Koninklijke Luchtvaart Maatschappij N.V. known as KLM Royal Dutch Airline (KLM) is one of the major international airlines which ranks fourth worldwide in terms of international passengers carried and covers 142 destinations in more than 70 countries. For the purposes of these administrative proceedings KLM authorised the Complainant to act on its behalf against the Respondent in relation to the disputed domain name <afklm.com> (KLM letter of authorization dated November 8, 2004).

The Complainant has a registered trademark AF in more than 100 countries of the world. KLM has a registered trademark KLM in most countries of the world. Both AF and KLM have registered domain names and operate numerous websites such as <airfrance.com>, <airfrance.nl>, <airfrance.com.tr>, <klm.com>, <klm.nl>, <klm.com.tr>.

Through its alliance AF and KLM offers 6 daily flights to Turkey where both companies have local offices.

The Respondent does not have any trademark registrations corresponding to the disputed domain name. The Respondent registered the domain name <afklm.com> on September 12, 2002. On May 5, 2004, the Respondent contacted the Complainant offering to sell the disputed domain name and after exchange of correspondence on June 24, 2004, indicated the price of Euro 6,000.

5. Parties’ Contentions

A. Complainant

The disputed domain name <afklm.com> is confusingly similar to the registered trademark AF of the Complainant:

- The likelihood of confusion is increased by mixture of two trademarks of AF and KLM which refers to the Complainant’s recent merger with KLM (see Sociйtй Air France contre Arnaud Gautier, WIPO Case No. D2003-0830),

- The Complainant (AF) and KLM have registered domain names and operate numerous websites for their international business worldwide containing the words: ‘airfrance’ and ‘klm’ (Annex U to the Complaint),

- The Respondent is not related to the Complainant’s business (nor KLM’s one), he is not an agent or a licensee (see Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055),

The Respondent has no rights or legitimate interests in respect of disputed domain name:

- The Respondent is not engaged in any action that shows his rights or legitimate interest in the disputed domain name,

- The Respondent registered the disputed domain name on September 12, 2004, a few days before the official announcement of a merger between AF and KLM, which had been the focus of media attention for many months (Annex A to the Complaint),

- The Respondent contacted the Complainant on May 5, 2004, and offered to sell the disputed domain name, stating his initial intention was not to develop the registered domain name (Annex J to the Complaint),

- Since May 13, 2004, the disputed domain name has pointed to a website on which several hyperlinks were displayed consisting of results in the field of tourism and travel (Annex K to the Complaint),

- At a later stage the Respondent justified the registration of the disputed domain name with an alleged project to open a bar with five friends whose names formed the abbreviation ‘afklm’: Ali, Ferhat, Kurtulus, Levent and Mert (Annex O to the Complaint).

The Respondent has registered and is using the disputed domain name in bad faith:

- The Respondent should have been aware of a well-known trademark AF at the time he applied for registration of confusingly similar domain name,

- The fact that the Respondent combined the two abbreviations of the names AF and KLM ascertains that he acted in bad faith since the news on a future merger between AF and KLM were widely publicised in media,

- The notoriety of the Complainant’s trademark “creates a prima facie presumption that the respondent registered the domain name for the purpose of selling it to Complainant or one of its competitors, or that it was intended to be used in some way to attract for commercial gain users to the website by creating a likelihood of confusion with Complainant’s mark” (see Arthur Guinness Son & Co. (Dublin) Ltd v. Steel Vertigogo, WIPO Case No. D2001-0020),

- The disputed domain name was registered primarily for the purpose of selling it to the Complainant for consideration far in excess of out of pocket expenses,

- After some correspondence, the Respondent offered to sell the disputed domain name for the price of Euro 6,000, which exceeds out of pocket costs related to the domain name registration and renewal (Annex O of the Complaint),

- The Respondent registered the disputed domain name for the only purpose of preventing the Complainant and its partner KLM from reflecting their partnership in corresponding domain name under the top level domain ‘.com’,

- The Respondent is the registrant of many other domain names and websites connected to the Netherlands and France (Annex M to the Complaint).

B. Respondent

- The Respondent does not contest the fact that the disputed domain name <afklm.com> is identical to trademarks of AF and KLM,

- However, the Respondent claims that the disputed domain name <afklm.com> represents the abbreviation made of the first letters of the names of five friends: Ali, Ferhat, Kurtulus, Levent and Mert in alphabetical order,

- The Respondent argues that the disputed domain name was registered weeks (and not days) before the so-called merger between AF and KLM,

- The original intention of five friends was to use the disputed domain name and to set up the site, however, it was kept solely as a contact point. The website ‘www.afklm.com’ is still simply a single page,

- The Complainant contacted the Respondent by phone and expressed interest in buying the disputed domain name,

- Network Solutions/Applied Semantics somehow put some links on the page (parking page) without the Respondent’s permission and without any financial gain for the Respondent,

- Later there was a link to the sites that were in the Respondent’s name or his father name (Davras Erdem Yavuz),

- The Respondent contacted the Complainant by email and after receiving the response offered to sell the disputed domain name for “1000EU euros each of the five boys, and 1000EU for myself”. Not receiving any response from the Complainant the Respondent followed his offer with several more emails on August 26, 2004, September 4, 15 and 20, 2004,

- The Respondent contests that the abbreviation AF is associated with the Complainant Sociйtй Air France,

- The Respondent contests the fact that potential customers were visiting the website which caused confusion and claims that his site resulted in no economic loss for the Complainant,

- The Respondent is aware of the Complainant website AF-KLM which was set up recently,

- No actual harm was ever caused to the Complainant by the Respondent.

6. Discussion and Findings

In accordance with Paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the disputed domain name, the Complainant must prove that each of the three following elements are satisfied:

(i) 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 domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

Pursuant to Paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

The Complainant has a registered trademark AF in more than 100 countries of the world including French trademark No 023163152 of May 6, 2002, Community trademark No 2914372 of October 31, 2002, and international trademark No 801897 for a number of classes such as 8, 14, 16, 18, 20, 21, 24, 25, 26, 34, 35 and 38 (Annex U1-U3 to the Complaint). KLM has a registered trademark KLM in most countries of the world, for instance Community trademark No 000500454 April 1, 1997, for classes 35, 36, 38, 39 and 42 (Annex U4 to the Complaint).

Although the KLM trademark is not registered in Turkey, this name is well-known and under the Turkish trademark law of 1995, the owner of well-known unregistered mark can oppose the registration of an identical or similar sign. The trademark KLM has been known in Turkey since 1929.

In addition, both AF and KLM have registered domain names and operate numerous websites reflecting their respective trademarks such as <airfrance.com>, <airfrance.nl>, <airfrance.com.tr>, <klm.com>, <klm.nl>, <klm.com.tr> since 1993-1999.

The Panel finds that the disputed domain name <afklm.com> is an identical reflection of the trademark AF of the Complainant and the trademark KLM of its partner KLM. The gTLD suffix, .com, cannot be considered as eliminating identity since this suffix is inherent in all domain names in this gTLD.

The fact that the trademarks of both the Complainant and its partner KLM are combined does not change the circumstances of the case. The disputed domain name is aimed to reflect the merger between the Complainant and its partner KLM.

The Panel rejects the Respondent’s arguments that the abbreviation AF is not associated with the Complainant Sociйtй Air France due to the fact that AF is a registered trademark known in more than 100 countries of the world including Turkey. The Complainant is also known in its business worldwide under this abbreviation.

In the Panel’s view, the disputed domain name, <afklm.com>, is identical to the Complainant’s trademark AF and its partner’s KLM trademark. The Respondent was not have been able to demonstrate any justified connection with this name. The Respondent is not an agent or a representative or a licensee of the Complainant or its partner KLM.

The Panel finds the Complainant has satisfied the burden of proof under Paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has never given any authorization to the Respondent or its representative to use the Complainant’s trademark or to register domain name containing its trademark.

According to Paragraph 4(c) of the Policy the following circumstances, if proved, demonstrate Respondent’s rights or legitimate interests in a domain name:

(i) Respondent used or demonstrably prepared to use the domain name or a corresponding name in connection with a bona fide offering of goods or services prior to notice of the dispute;

(ii) Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if it has not acquired trademark rights; or

(iii) Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the complainant’s mark.

The Respondent may elect to show rights and legitimate interests, non-exhaustively, by producing proof under Paragraphs 4(c)(i-iii) of the Policy. The Panel has reviewed the circumstances of this case and has reached the following conclusions:

Firstly, there is no evidence that before any notice of a dispute with the Complainant, the Respondent was using the disputed domain name for a legitimate offering of goods or services.

The Panel does not accept the Respondent’s argument that the disputed domain name <afklm.com> was registered for a project of opening a bar with five friends. The Panel has no evidence of the fact that Respondent or his associates actually conduct any legitimate business under the disputed domain name.

The Respondent further argues that when later there was a link to the other sites for tourism and travel it was in the Respondent’s name or his father name (Davras Erdem Yavuz). This, in Panel’s view, does not prove the existence of legitimate business since it was no connection between this alleged business and the disputed domain name.

In addition, the Panel finds that these two arguments of Respondent contradict one another. Furthermore, in initial email correspondence with the Complainant on May 5, 2004, the Respondent indicated that he had no intention to use the disputed domain name.

Secondly, as for the Respondent’s proof under Paragraph 4(c)(ii) of the Policy, there is no evidence that the Respondent has been commonly known by the disputed domain name.

There is no information that the Respondent may be known under the disputed domain name as its business name or its company name. In email correspondence with the Complainant, the Respondent never demonstrated or proved any rights to or legitimate interests in the word ‘afklm.’ The Complainant contends the Respondent is not commonly known by the disputed domain name <afklm.com>.

The Panel does not have any grounds to believe that the Respondent may be known under the name ‘afklm’. The Respondent’s argument that this name represents the abbreviation made of the first letters of the names of five friends: Ali, Ferhat, Kurtulus, Levent and Mert in alphabetical order is not sufficient for the Panel to believe that the Respondent is known under this name.

The Panel recalls that the Respondent registered the disputed domain name on September 12, 2004. The Complainant and its trademark AF as well as its partner KLM and its trademark have been well known worldwide for many years. Both the Complainant and its partner are known under these abbreviations as their trade names. Both have a number of registered domain names and websites reflecting these trademarks. The Panel believes that the Respondent knew about the Complainant’s trademarks as well as its partner’s.

Furthermore, regarding these facts, it is the Panel’s view that the Respondent set out to register the disputed domain name since he knew it was valuable and he was well aware of the Complainant’s (and its partner KLM) trademark interests in the disputed domain name.

Thus, the Panel does not find that the Respondent’s use of the disputed domain name for linking it with other sites in the area of tourism and travel is a bona fide offering of services under Paragraph 4(c)(i) the Policy. Nor does it show any demonstrable preparations to use the disputed domain name for a project of opening a bar by five friends. Rather, the Respondent essentially is using a holding pattern for the disputed domain name while the Respondent tries to find out how best to exploit it for generating profit by selling it.

Furthermore, the Panel draws an adverse inference from the Respondent’s failure to prove any rationale for his use of the disputed domain name.

The Panel finds the Complainant has carried out its burden of proof to show the Respondent has no legitimate rights or interests in the disputed domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides that the following circumstances are deemed to be evidence that a Respondent has registered and used a domain name in bad faith:

(i) circumstances indicating that the Respondent has registered or 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 the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or

(ii) the Respondent has 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 the Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 its website or location or of a product or service on its website or location.

The Complainant contends the Respondent has violated the bad faith provisions of Paragraph 4(b)(i) of the Policy because he intends to sell the disputed domain name to the Complainant (who is the owner of the trademark) for much more than Respondent’s out-of-pocket costs directly related to domain name. There is sufficient evidence that this is the case.

The Respondent contacted the Complainant by email of May 5, 2004, and proposed to sell the disputed domain name (Annex J to the Complain). After some correspondence, on June 24, 2004, the Respondent offered to sell the disputed domain name for the price of Euro 6,000, which exceeds out of pocket costs related to the domain name registration and renewal (Annex O to the Complain).

Thus, the Respondent is in violation of the bad faith provisions of the Policy in paragraph 4(b)(i), i.e. the Respondent registered the disputed domain name with the intention of selling it for far more than it paid for it.

The Panel does not interpret the Policy to mean that the mere offer for sale of a domain name for a substantial sum of money has to be considered an act of bad faith. Selling of domain names is prohibited by the Policy if the other elements of Paragraph 4(a) of the Policy are also violated, i.e., that the domain name “has been registered and is being used in bad faith.”

According to the widely cited case Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003: “the requirement in paragraph 4(a)(iii) that the domain name “has been registered and is being used in bad faith” will be satisfied only if the Complainant proves that the registration was undertaken in bad faith and that the circumstances of the case are such that Respondent is continuing to act in bad faith.”

Firstly, the Panel finds that the Respondent “has registered the disputed domain name in bad faith.” The Respondent does not conduct any legitimate business activity using the disputed domain name. Given the Complainant’s and its partner’s numerous trademark registrations for, and its wide reputation in, the words ‘AF’ and ‘KLM’ and their merger it is not possible to conceive of a circumstance in which the Respondent could legitimately use the domain name <afklm.com>.

It is also not possible to conceive of a situation in which the Respondent would have been unaware of this fact at the time of registration. The fact that the prospective merger between AF and KLM was widely covered in press (Annex I to the Complain), the Panel sees it as an evidence that the Respondent has been aware of that and that he has intentionally registered the domain name representing both trademarks. These findings, together with the finding that the Respondent has no rights or interests in the disputed domain name, lead the Panel to conclude that the disputed domain name has been registered by the Respondent in bad faith.

Additionally, Complainant’s information about numerous other domain names registered by the Respondent indicates that the Respondent is in the business of warehousing domain names for resale (Annex M to the Complain). This proves that the Respondent is in violation of the bad faith provisions of the Policy in paragraph 4(b)(ii).

The Panel finds that the disputed domain name is being used in bad faith by the Respondent. The domain name <afklm.com> does not resolve to any proper website or other on-line business presence. The <afklm.com> web page is merely a homepage which indicates that “Ali, Ferhat, Kurtulus, Levent & Mert welcome you to AFKLM “the bar for your sweetest moments with the cutest bois…” Mail us!!!!” (Annex P to the Complaint). Furthermore, such a web page is likely to negatively affect the business reputation of both the Complainant and its partner KLM when customers using the ‘afklm’ abbreviation while searching on the Internet come to such a page.

The Panel finds the Complainant has shown the Respondent has registered and is using the disputed domain name in bad faith.

7. Decision

The Administrative Panel decides that the Complainant has proven each of the three elements in Paragraph 4(a) of the Policy. In accordance with Paragraph 4(i) of the Policy and Paragraph 15 of the Rules, the Panel orders that the disputed domain name, <afklm.com>, be transferred to the Complainant.

Irina V. Savelieva
Sole Panelist

Dated: December 3, 2004