Société Air France v. Kitchkulture

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Air France v. Kitchkulture

Case No: D2002-0158

1. The Parties

The Complainant is Société Air France, 45 rue de Paris,

95747 Roissy CDG Cedex, France, represented by Meyer &

Partenaires, Patent and trademark Agents, Bureaux Europe, 20 Place

des Halles, Strasbourg, France.

The Respondent is KitchKulture, 9 rue de l'Yser, 92210 Paris,

France.

2. The Domain Name and Registrar

The domain name which is the subject of these administrative proceedings

is <my-airfrance.com>.

The registrar of the domain name <my-airfrance.com>is Easyspace International Ltd.

3. Procedural History

On February 18, 2002, the Complaint was received by the WIPO Arbitration

and Mediation Center ("the Center") by e-mail and on February 20, 2002,

in hard copy.

An Acknowledgement of Receipt of Complaint was sent out by the WIPO Center,

dated February 21, 2002.

On February 26, 2002, the Center sent a Request for Verification to Easyspace Ltd

and on February 28, 2002, Easyspace responded, confirming that

it is the registrar of the domain name <my-airfrance.com>,

that the Respondent is the current registrant of the said domain name, that

the Uniform Domain Name Dispute Resolution Policy applies to the said registration

and that the registration was at that time in active status.

On March 1, 2002, the Center verified, in accordance with Paragraph 4(a)

of the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules")

and paragraph 5 of the WIPO Supplemental Rules for Uniform Domain Dispute

Resolution Policy ("the Supplemental Rules"), that the Complaint satisfied

the formal requirements of the Uniform Domain Name Dispute Resolution Policy

("the Policy"), the Rules and the Supplemental Rules and that payment in

the required amount had been made by the Complainant.

On March 1, 2002, the Center sent a Notification of Complaint and Commencement

of Administrative Proceeding relating to the registration of the said domain

name <my-airfrance.com> to the Respondent. A copy of said Notification

was sent to the Registrar and to the Complainant.

As no Response has been received within the permitted period for filing,

that is by March 21, 2002, the Center notified the Respondent's

default on March 28, 2002.

On April 10, 2002, the Center invited the undersigned to act as Administrative

Panel in these Administrative Proceedings, and, after having received a

Statement of Acceptance and Declaration of Impartiality from him in accordance

with paragraph 7 of the Rules, the Center proceeded to appoint said undersigned

as Administrative Panel on April 18, 2002. On the same day the

case file was transmitted to the Administrative Panel.

In the view of the Administrative Panel, proper procedures were followed

and this Administrative Panel was properly constituted. The Panel has not

received any requests from Complainant or Respondent regarding further submissions,

waivers or extensions of deadlines, and the Panel has not found it necessary

to request any further information from the parties. The proceedings have

been conducted in English.

4. Factual Background

Because there is no submission from the Respondent, the facts are taken

from the Complaint and generally are accepted as true.

AIR FRANCE is one of the world's major airline companies. It is

the third largest international passenger carrier and the fourth largest

freight carrier. It also ranks second world-wide for aircraft maintenance.

AIR FRANCE offers the largest medium-haul network in Europe today in terms

of daily flights.

AIR FRANCE is actually operating an international web portal under

the uniform resource locator http://www.airfrance.com.

It has also registered several generic and country code top level domain

names consisting of, or incorporating the trademark "Air France".

A few weeks ago, AIR FRANCE found out that Respondent had registered the

domain name in issue. AIR FRANCE first tried to solve the matter in an amicable

way. Through its trademark attorney, AIR FRANCE sent a formal letter on

November 27, 2001 asking Respondent to cease and desist from any

unauthorised use of the domain name <my-airfrance.com> and to transfer

the said domain name to AIR FRANCE.

The Respondent failed to give any response and the Center has no information

about the entity called KITCHKULTURE and the domain name's administrative

contact Stéphanie Schroeder.

5. Parties’ Contentions

A. Complainant

The Complainant submits that :

1) it should be considered that the trademark "Air France" owned by

Complainant is not only registered and used in commerce in a great majority

of countries in the world, but is also "well-known" in the sense of article

6bis of the Paris Union Convention.

2) the domain name <my-airfrance.com> is appropriating the Complainant's

trademark as it is quite identical to the trademark "Air France", visually,

phonetically and connotatively and the domain name <my-airfrance.com>

registered by Respondent has to be considered confusingly similar to its

trademark "Air France".

3) Respondent had no right or legitimate interests in domain name

in issue and furthermore, there is no demonstrable use or preparation

for use of the domain name in connection with the bona fide offering

of goods or services by Respondent.

In consequence, Air France requests the domain name <my-airfrance.com>

to be transferred to its own profit.

B. Respondent

There is no submission from the Respondent.

6. Discussion and Findings

The following discussion will take place strictly within the frame of Paragraph

4 of the Policy with no regards to the French trademark law i.e. in construing

paragraph 4 the Panel notes that:

- the Complainant has the burden of proof in showing that the three

elements set out in the provisions listed in paragraph 4(a) are present;

- these three elements are cumulative and not alternative.

A. Has the Complainant rights in the trademark "Air France" ?

As the Complainant has furnished evidence of its ownership and continued

use of the trademark "Air France" over sixty-nine years, this Administrative

Panel is fully satisfied that it has rights in the said trademark "Air France".

As a matter of fact the Complainant has used the mark extensively and the

mark has acquired considerable fame and recognition world-wide.

B. Is the domain name <my-airfrance.com> identical or confusingly

similar to the trademark "Air France" ?

The domain name <my-airfrance.com> is practically identical to the

Complainant’s trademark "Air France" since the sequence of letters "airfrance"

is the most conspicuous "sub-string" of <my-airfrance.com>.

As the Complainant points it out on obvious grounds: The Respondent has

just added the English pronoun "my" to the Complainant's trademark "Air

France", this combination being just separated by a dash (-) ; the mere

addition of the word "my" is by no means sufficient to confer a self distinctiveness

to the locution "my-airfrance" into the domain name in issue.

Beyond that, should this actual similarity be considered as conducive to

a confusion ?

Here the Panel refers to a strikingly similar case previously submitted to

the Center (WIPO Case No. D2000-1007)

where it was determined that the domain name <mysony.com> was confusingly

similar to the Complainant’s trademark "Sony" in the following terms

: "The letters "my", to an English language reader, introduce the

concept of possessiveness. That which is possessed is the following letters,

namely "Sony", which is the Complainant’s trademark. The addition

of the letters "my" has the effect of focusing the reader’s attention

on the Complainant’s trademark. Accordingly, the Panel considers that a reader

of the domain name would be confused into thinking that the domain name is associated

with the Complainant".

Clearly, mutatis mutandis, the similarity between "Air France" and

"my-airfance" should be addressed the same way.

Eventually, considering :

- first that the trademark Air France, though essentially related to air traffic

has been extensively used for many other products and services of general purpose,

- second that the aforesaid products and services are, for a major part of

them, available through the web,

the Administrative Panel retains the chances for confusion as a valuable

assertion.

C. Has the Respondent rights or legitimate interests in respect of the domain

name ?

The panelist, looking for one or more of the circumstances listed in Paragraph

4(c), which are not exclusive but which if are found to be proved are sufficient

to demonstrate the Respondent’s rights or legitimate interest to the domain

name, assesses that the Respondent did not use or prepared to use the domain

name <my-airfrance.com>, before any notice of the dispute,

in connection with a bona fide offering of goods or services as total

default of any answer is sufficient to prove.

By not submitting a Response, Respondent has failed to invoke any circumstance

which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights

or legitimate interests in the Domain Name.

D. Has the domain name been registered and used in bad faith ?

Paragraph 4(b) of the Policy sets out - but without limitation

- four circumstances which, if found to be present, shall be evidence of

the registration and use of a domain name in bad faith.

None of the circumstances listed in paragraph 4(b)(i) to (iii) were found

to be proved in the case.

On the contrary the Panel found paragraph 4(b)(iv) quite relevant as it

states:

"by using the domain name respondent has intentionally attempted to attract,

for commercial gain, Internet users to the respondent’s web site or on the

on line location, by creating a likelihood of confusion with the complainant’s

mark as to the source, sponsorship, affiliation or endorsement of the respondent’s

web site or location or of a product or service on the respondent’s web

site or location".

Truly, in the present case, no commercial gain was actually made, but the

panelist construes the provision that way : commercial gain is just one

of the possible incentives to create a likelihood of confusion with such

a mark as the complainant's ; the obvious purpose of the respondent was

to get some foreseeable gain out of the confusion, be it commercial or not.

7. Decision

The Administrative Panel decides :

- that the Complainant, for the reasons set out above, has duly proved

in accordance with paragraph 4 of the Uniform Policy,

- that the domain name <my-airfrance.com> is confusingly

similar to the trademark "AirFrance",

- that KITCHKULTURE has "no rights or legitimate interests in respect

of the domain name" and

- that the domain name has been registered and used in bad faith.

In consequence, pursuant to paragraph 3(c) of the Uniform Policy, the domain

name shall be transferred to AIR FRANCE.

X. Linant de Bellefonds

Sole Panelist

Dated: May 9, 2002

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