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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Jet2.com Limited v. Domains Ventures

Case No. D2006-1016

 

1. The Parties

The Complainant is Jet2.com Limited, Christchurch, Dorset, United Kingdom of Great Britain, represented by Gill Jennings & Every, London, United Kingdom of Great Britain.

The Respondent is Domains Ventures, Xiamen, Fujian, China.

 

2. The Domain Name and Registrar

The disputed domain name <wwwjet2.com> is registered with Moniker Online Services, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 9, 2006. On August 11, 2006, the Center transmitted by email to Moniker Online Services, Inc. a request for registrar verification in connection with the domain name at issue. On August 18, 2006, Moniker Online Services, Inc. transmitted by email to the Center its verification response stating inter alia the name and address of the Respondent listed as the registrant and providing the contact details for the administrative, billing, and technical contact. Accordingly, the Center notified a Complaint Deficiency to the Complainant on August 21, 2006, and gave a five days delay in order to cure the deficiency. In response to said notification, the Complainant filed an amendment to the Complaint on August 22, 2006. The Center verified that the Complaint together with the amendment to 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 Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 24, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was September 13, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 18, 2006.

The Center appointed Christian Pirker as the Sole Panelist in this matter on September 27, 2006. 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.

After reading the Complaint, the Panel noticed that there were some evidence missing and uncertainty about the domain names related to JET2.COM and allegedly owned by Complainant. Thus, the Panel decided to issue an Administrative Panel Procedural Order requiring the Complainant to produce the evidence and an amendment. The order, issued on October 13, 2006, fixed a deadline of October 19, 2006, for the Complainant to comply with the order and of October 25, 2006, for the Respondent to submit its comments. The Panel also extended the deadline to forward its decision to October 30, 2006.

 

4. Factual Background

The Complainant is Jet2.com, formerly registered as Channel Express (Air Services) Limited - a subsdiairy of the Dart Group Plc. The Complainant is a UK company providing airline and holiday services mainly through its Internet website “www.jet2.com”.

The Complainant has registered numerous trademarks containing the terms “jet2” and “jet2.com”, inter alia:

- Community Trademark JET2 No. 003064524 filed on February 21, 2003, in classes 9, 16, 39 and 43;

- Community trademark JET2.COM No. 003426723 registered on October 22, 2003 in classes 39 and 43;

- Swiss Trademark JET2 No. 518644 filed on November 4, 2003, in classes 39 and 43;

- Swiss Trademark JET2.COM No. 518645 filed on November 4, 2003, in classes 39 and 43;

- United Kingdom Trademark JET2 N° 2312985 filed on October 11, 2002, in classes 39 and 43;

- United Kingdom Trademark JET2.COM N° 2312986 filed on October 11, 2002, in classes 39 and 43;

The Complainant has registered its domain name <jet2.com> on October 13, 2002, and has provides its services on the Internet since December 2002.

The Respondent is located in Xiamen, Fujian, China. The disputed domain name was registered on October 14, 2003, and was used at least since February 2006. It is currently used for a website directory in order to redirect consumers to numerous other websites offering the same type of products and services as those provided by the Complainant.

The Respondent, Domains Ventures, has been involved lately in numerous other domain name disputes. As far as the Panel is aware, Domains Ventures has also been in default in those disputes, and the disputed domain names have eventually been transferred to the relevant complainants (see Winshape Centre, Inc v. Domains Ventures, WIPO Case No. D2005-0885; Universal City Studios LLLP v. Domains Ventures, WIPO Case No. D2005-0964; My Diamond Place, Ltd v. Domains Ventures, WIPO Case No. D2005-1276; Boscolo Group S.p.A v. Domains Ventures, WIPO Case No. D2006-0231; Humana Inc. v. Domains Ventures, WIPO Case No. D2006-0263).

 

5. Parties’ Contentions

A. Complainant

The Complainant alleges that the disputed domain name is identical in all material aspects to the trademarks JET2 and JET2.COM and that the disputed domain name should be considered as “typosquatting”. The Complainant further alleges that the Respondent has neither prior rights nor legitimate interest to justify the use of this Trademark. It is the Complainant’s view, that the registration of the disputed domain name by the Respondent illustrates its bad faith since the Complainant’s trademarks and website have a strong reputation. Moreover, the Complainant alleges that the Respondent is acting in bad faith as it is using the domain name to offer the same type of services as offered by the Complainant but in order to abusively benefit from the Complainant’s notoriety. Accordingly, there should be no doubt that the disputed domain name was registered and is being used in bad faith. Finally, the Complainant noted that the Respondent has a history of registering and using domain names in bad faith.

Accordingly, the Complainant contends that the Respondent has registered a domain name that is confusingly similar to the trademarks registered and used by it, that the Respondent has no rights or legitimate interests in the domain name at issue, and that the Respondent has registered this domain name in bad faith.

B. Respondent

As noted above, the Respondent is in default pursuant to paragraph 5(e) and 14 of the Rules, and paragraph 7(c) of the Supplemental Rules, as no Response was submitted in due time.

It is further noted that the Respondent did not give any response nor communicate any message at any time during the present proceedings.

Under paragraphs 5(e) and 14(a) of the Rules, the effect of a default by the Respondent is that the Panel shall proceed to a decision on the Complaint. Under paragraph 14(b), the Panel is empowered to draw such inferences from Respondent’s default as it considers appropriate under the circumstances.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel to:

“decide a complaint on the basis of the statements and documents submitted in accordance with the policy, these rules and any rules and principles of law that it deems applicable”.

Paragraph 4(a) of the Policy states that the Complainant must prove that each of the three following elements are present:

(i) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant have rights; and

(ii) that the Respondent has no rights nor legitimate interests in respect of the domain name; and

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

A. Identical or Confusingly Similar

The JET2 trademarks are registered in numerous countries, among others with the European Community, Switzerland and United Kingdom, in classes 39 and 43, mainly for airline and holiday services.

The “jet2” name in its entirety is included in the disputed domain name. Accordingly, the distinctive part of the disputed domain name is the term “jet2” and the prefix “www” is descriptive. Domain names that combine a descriptive term with another’s trademark have been held to be confusingly similar to the trademark (see, e.g., AT&T Corp. v. WorldclassMedia.com, WIPO Case No. D2000-0553; Scholastic Inc. v. 366 Publications, WIPO Case No. D2000-1627). Moreover, as mentioned in CSC Holdings, Inc. v. Elbridge Gagne, WIPO Case No. D2003-0273 and Scania CV AB (Publ) v. Unaci, Inc., WIPO Case No. D2005-0585, adding the prefix “www” to a trademark does not particularly alter the overall impression of similarity. First, “www” is the well-known acronym for “world wide web” and thus had no distinguishing capacity in a domain name context. Second, the use of “www” at the beginning of a domain name causes confusion whenever a very common and well-known typing error occurs: the typist omits the period (“.”) which would normally separate a domain name from the <www> field.

Therefore, this Panel concludes that the domain name <wwwjet2.com> is confusingly similar to the trademark JET2.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy a Respondent can establish its rights or legitimate interests in its Domain Name if it shows the presence of any of the following circumstances:

“(i) before any notice to you [Respondent] 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 [Respondent] (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 [Respondent] 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.”

It is for the Complainant to demonstrate that this condition is met prima facie. Provided that the Complainant is successful in demonstrating that the condition is met prima facie, it is for the Respondent to demonstrate its rights or legitimate interests. Accordingly, the main burden of proof is on the Respondent.

The Complainant alleges that the Respondent has no connection whatsoever with it and that the Respondent has no right or legitimate interest in the domain name.

Taking into consideration the fact that this condition consists of furnishing evidence of the non-existence of a material fact, the Panel considers that the Complainant has fulfilled its obligations under this paragraph.

As stated above, the Respondent failed to respond to the Complaint. The Panel will therefore draw such inferences as it considers appropriate under the circumstances (paragraphs 5(e) and 14 (a) of the Rules).

The Respondent has not challenged the Complainant’s contention. The Panel finds it credible.

Moreover, there is no evidence in the file that the Respondent has any right or legitimate interest in the domain name.

Accordingly, the Panel considers that the Respondent does not have any right or legitimate interest in the domain name.

C. Registered and Used in Bad Faith

The third element to be established by the Complainant is that the domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the policy states the following four (non-exclusive) circumstances which, if found to be present, are deemed to provide evidence of bad faith in registering and using the domain name.

“(i) circumstances indicating that you [Respondent] have registered or you [Respondent] have 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 documented out-of-pocket costs directly related to the Domain Name; or

(ii) you [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 have engaged in a pattern of such conduct; or

(iii) you [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 [Respondent] have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or your location.”

The domain name must not only be registered in bad faith, but it must also be used in bad faith (e.g., World wrestling Federation Entertainment, Inc. v. Michael Bosman, WIPO Case No. D1999-0001).

The Panel notes that some panelists in certain default cases have accepted credible allegations from a complainant as true, particularly under paragraphs 4(a)(ii) and 4(a)(iii) of the Policy, regarding the factors that make out illegitimacy of a respondent’s use or the presence or absence of bad faith, e.g., Luis Cobos v. West, North (Nick Handle: JNMTOKTCQD), WIPO Case No. D2004-0182; Microsoft Corporation v. Andrey Tumakov, WIPO Case No. D2002-1039; Plymouth State College v. Domains, Best Domains, WIPO Case No. D2002-0939.

The Complainant’s allegations in this case that the disputed domain name has been registered and is used in bad faith could be accepted as true. That being said, the Panel further states the following.

The Panel considers that the evidence submitted establishes that the choice of the domain name by the Respondent could hardly be a coincidence. First, adding the prefix “www” to the Complainant’s domain name indicates Respondent’s purposeful choice of a domain name that is confusingly similar to Complainant’s domain name to attract Complainant’s customers. Further, the disputed domain name reverts to a website directory active in the same field as the Complainant. Accordingly, the Panel considers that the disputed domain name is used as a “click-through” revenue generating site which provides income to the Respondent by inducing Internet users to click through sponsored links. It is the Panel’s opinion that the intention behind the Respondent’s use of a domain name containing the Complainant’s trademark is merely to capture the Complainant’s customers who are seeking the Complainant’s services, and to re-direct them to other websites. Such use of domain is neither legitimate, nor in good faith. Using a domain name to intentionally attract, for commercial gain, Internet users to a website by creating confusion with a complainant’s mark is evidence of bad faith registration under the Policy, paragraph 4(b)(iv) (e.g., Compagnie Gйnйrale des Etablissements Michelin CGEM - Michelin & Cie, Michelin Recherche et Technique S.A. v. Horoshiy Inc., WIPO Case No. D2004-0752).

Further, the Panel finds that the circumstances in this case lead to the conclusion of bad faith use for the following reasons:

- The disputed domain name leads customers or potential customers of the “jet2” services to believe that they will find, on the Respondent’s Internet website, Complainant’s products or services.

- The Respondent’s use of the domain name has no relation to the Complainant’s activities except for misleading and diverting potential customers of the Complainants to the Respondent’s website or related website.

- It seems that the Respondent provided false contact details since the documents sent by postal-mail to the Respondent were returned because the address provided to the registrar was incorrect.

- In the last year, the Respondent has been cited as a respondent in numerous other cases, in which the disputed domain names were eventually transferred to the relevant complainants.

- Finally, the Respondent did not actively participate in the proceedings.

As a result, the Panel holds that both elements of paragraph 4(a)(iii) of the Policy have been met. The Panel thus concludes that the Complainant has established that the Respondent registered and use the disputed domain name in bad faith.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <wwwjet2.com> be transferred to the Complainant.

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Christian Pirker
Sole Panelist

Dated: October 30, 2006