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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

British Airways Plc. v. David Moor

Case No. D2006-1224

 

1. The Parties

The Complainant is British Airways Plc., of Harmondsworth, United Kingdom of Great Britain and Northern Ireland, represented by Wragge & Co., United Kingdom of Great Britain and Northern Ireland.

The Respondent is David Moor, of Karnataka, India.

 

2. The Domain Name and Registrar

The disputed domain name <britishairwayslimited.com> is registered with Network Solutions, LLC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 22, 2006. On September 26, 2006, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name at issue. On September 26, 2006, Network Solutions, LLC 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 Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 2, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 22, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 23, 2006.

The Center appointed Harry L. Arkin as the sole panelist in this matter on November 6, 2006. The Panel finds that it was properly constituted as such. The sole panelist has submitted his Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

The time for filing the Decision of the undersigned Panel was subsequently extended by the Panel pursuant to Paragraph 10(c) of the Rules.

 

4. Factual Background

The Complainant is the registered proprietor of the trademark BRITISH AIRWAYS in numerous countries throughout the world, a fact as confirmed by the UK Patent Office, which the evidence indicates confirmed such registration as early as 1988 and 1989; and as of 1990, by the Trademarks Registry of the Government of India (the country address of the Respondent), albeit the latter was for seven (7) years only, without evidence of renewal being presented by the Complainant.

The Respondent registered the Domain Name <britishairwayslimited.com> with Network Solutions LLC on April 12, 2005.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends as follows:

- that the Domain Name at issue registered by the Respondent is identical or confusingly similar to the Complainant’s trademarks referred to above and as further described in Annex E to the Complaint;

- that the Respondent has no rights or legitimate interests in the name for which the Complainant has registered trademarks;

- that the Respondent’s registration of the subject Domain Name was not made with a view to any bona fide use of the Domain Name, and that no services or goods have ever been offered by the Respondent through the Domain Name.

- that the Domain Name registered by the Respondent was and is being used in bad faith, in the Respondent’s seeking to obtain financial gain by seeking to sell the same to the Complainant.

- that, as a result of the foregoing, the Complainant seeks transfer of the subject Domain Name to the Complainant.

B. Respondent

The Respondent did not file any response or contest of the Complaint filed in this action, i.e., the Respondent did not reply to the Complainant’s contentions, whereby the Panel has been left to decide the dispute based upon the Complaint in accordance with paragraph 5(e) of the Rules.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel finds that the Complainant has established that it has rights to the registered trademark BRITISH AIRWAYS. The Respondent has added the word “limited” to the Complainant’s trademark. The Panel finds that including a dictionary word to a disputed domain name consisting of a complainant’s trademark in its entirety does nothing to alleviate the confusing similarity.

The Complainant has established the first element of the Policy.

B. Rights or Legitimate Interests

The Complainant submits as follows:

“The Complainant has not authorised, licensed or otherwise consented to the Respondent’s use of its UK and Indian trade marks for BRITISH AIRWAYS by incorporation into the Domain Name or at all;

The Domain Name has since at least August 2005 resolved to a holding page which states ‘This site is under construction. Please visit again to check the status.’ Copies of this web page at various different dates are provided at Annex I and Annex J. This page does not offer any services or goods sold by reference to the registered trademarks for BRITISH AIRWAYS. The Respondent has not been commonly known by the Domain Name whether as an individual, business or other organization;

The Complainant believes that the Respondent has never been known by the mark BRITISH AIRWAYS or by any confusingly similar marks or is in any way related to the Complainant’s trademarks. In any event, in view of the fame of the BRITISH AIRWAYS mark it is inconceivable that the Respondent could claim to be known by a mark which is identical or confusingly similar to BRITISH AIRWAYS; and

Before receiving notice of the Complainant’s dispute, there is no evidence of 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 genuine offering of goods or services.”

The Panel finds that the Complainant has made a prima facie showing of the Respondent’s lack of rights or legitimate interests to the disputed domain name. In light of the circumstances in this particular case, and in the absence of a rebuttal by the Respondent, the Panel finds that the Complainant has established the second element of the Policy.

C. Registered and Used in Bad Faith

The Panel refers to Teachers Insurance and Annuity Association of America v. Wreaks Communications Group, WIPO Case No. D2006-0483, which states as follows:

“Respondent has not engaged in any of the activities enumerated by the Policy, paragraph 4(b), as examples of bad faith registration and use. Instead, Respondent has merely passively held the web site, engaging in no activity. However, beginning with Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (February 18, 2000), a number of panels have held that inaction by a respondent with regard to a domain name can constitute bad faith use when the respondent has registered the domain name in bad faith and the totality of the circumstances leads to the conclusion that a “[r]espondent’s passive holding amounts to bad faith.” Telstra, supra (stating that “paragraph 4(b) recognizes that inaction (e.g., passive holding) in relation to a domain name registration can, in certain circumstances, constitute a domain name being used in bad faith…. [I]n considering whether the passive holding of a domain name, following a bad faith registration of it, satisfies the requirements of paragraph 4(a)(iii), the Administrative Panel must give close attention to all the circumstances of the Respondent’s behaviour.”). See also Autoshop 2 Di Battaglia Ferruccio C. S.N.C. v. Willamette RF Inc., WIPO Case No. D2004-0250 (June 2, 2004) (collecting cases citing to Telstra).”

The Panel finds that the totality of the circumstances in this case lead to the conclusion that the domain name was registered and is being used in bad faith. The Panel notes that the Complainant’s trademark is widely known, the Respondent has not participated to these proceedings, he has provided incorrect contact details to the Whois database, and he has provided no evidence of any actual or contemplated good faith use of the domain name. Finally, the Panel finds it impossible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate use of the domain name, by way of being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant’s rights under trademark law.

The Panel finds that the Complainant has established the third element of the Policy.

 

7. Decision

For the foregoing reasons, the Panel orders in accordance with paragraph 10(a) of the Rules that the Domain Name <britishairwayslimited.com> be transferred to the Complainant.

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Harry L. Arkin

Sole Panelist

Dated: December10, 2006