EasyGroup IP Licensing Limited v. Amjad Kausar
WIPO Case No. D2003-0012
- Outcome
- Transfer
- Domain names
- wwweasyjet.com
- Complainant
- EasyGroup IP Licensing Limited
- Respondent
- Amjad Kausar (Karachi)
- Panelist
- Xue Hong
- Decided
- 28 Feb 2003
- Response
- The respondent did not reply
- Language
- English
Source: WIPO Arbitration and Mediation Center. Official copy: https://www.wipo.int/amc/en/domains/decisions/html/2003/d2003-0012.html
WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
EasyGroup IP Licensing Limited v. Amjad Kausar
Case No. D2003-0012
1. 1. The Parties
The Complainant is EasyGroup IP Licensing Limited at The Rotunda, 42/43 Gloucester
Crescent, London NW1 7DL, United United Kingdom of Great Britain and North
Ireland, and represented by Norton Norton Rose at Kempson House, Camomile
Street, London, EC3A 7AN, United Kingdom of Great Britain and North North Ireland.
The Respondent is Amjad Kausar, whose address is P.O. Box No. 5706, Karachi
74000, Pakistan.
2. 2. The Domain Name and Registrar
The domain name in dispute is <wwweasyjet.com>, registered with eNom,
Inc., at 16771 NE 80th Street, Suite#100, Redmond, WA 98052
United States.
3. Procedural History
This proceeding is to be resolved under the Uniform Domain Name Dispute Resolution
Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution
Policy (the "Rules"), and the World Intellectual Property Organization
("WIPO") Supplemental Rules for Uniform Domain Name Dispute Resolution
Policy (the "Supplemental Rules").
the Uniform Policy for Domain Name Dispute Resolution (the "Policy")
and Rules (the "Rules") approved by the Internet Corporation for Assigned
Names and Numbers (ICANN) on October 24, 1999 and the World Intellectual Property
Organization Arbitration and Mediation Center’s Supplemental Rules for Uniform
Domain Name Dispute Resolution (the "Center", the "Supplemental
Rules").
The Complaint was filed with the WIPO Arbitration and Mediation Center ("the
Center") on January 7, 2003, by e-mail, and on January 9, 2003, in
hard copy. On January 7, 2003, the Center transmitted by email to eNom a request
for registrar verification in connection with the disputed domain name. On January
14, 2003, eNom transmitted by email to the Center its verification response,
confirming that the Respondent is listed as the registrant and providing the
contact details for administrative, billing and technical contact. On January
13, 2003, in response to a notification by the Center that the Complaint
was administratively deficient, the Complainant filed an amendment to the Complaint.
On January 16, 2003, the Center verified that the Complaint, together with the
amendment to the Complaint, satisfied the formal requirements of the Policy,
the Rules and the Supplemental Rules.
In accordance with the Rules, Paragraph 2(a) and 4(a), the Center formally
notified the Respondent of the Complaint, and the proceedings commencted on
January 16, 2003. In accordance with the Rules, Paragraph 5(a), the due date
for the Response was February 5, 2003. The Respondent did not submit any response.
Accordingly, the Center notified the Respondent’’s default on February 6,
2003.
The Center appointed Ms. Hong Xue as the sole Panelist in this matter on February
13, 2003. The Panel finds that it was properly constituted and appointed in
accordance with the Rules and the Supplemental Rules. 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.
The language of the proceeding is English, as being the language of the domain
registration agreement, pursuant to Paragraph 11(a) of the Rules, and also in
consideration of the circumstances of this administrative proceeding and to
the fact that there is no express agreement to the contrary by the parties.
4. Factual Background
The Complainant is a number of a group of associated companies with the uniform
house branding style and identity. Each member trades under and by reference
to marks prefixed by "EASY". The easyGroup company—easyJet Airline
Company Limited—has been an operator of a commercial passenger airline since
1995, and trading under and by reference to the mark "EASYJET". The
trademark "EASTJET" has been registered in Benelux, France, Germany,
Malta, Mexico, Norway, Sweden, Switzerland, United Kingdom and United States.
By an agreement dated ecember 5, 2000, easyJet assigned all its trademarks,
applications and registrations therefor to the Complainant and was granted an
exclusive license for the same in return. Since 1998, easyJet has begun the
use of "e-commerce" technique in its airline business via its website
at "<www.easyjet.com>." The Complainant has registered and uses
various domain names, incorporating some version of its trademark (such as <wwweasyjet.net>
or <www-easyjet.com>), to assist its efforts in offering services on the
Internet.
The Respondent is listed as the Registrant of the disputed domain name. The
record of registration was created on September 15, 2001.
5. The Parties’’ Contentions
A. Complainant’’s Contentions
The Complainant is a number of a group of company name the "easyGroup"
which operates its corporate website at <www.easygroup.co.hk>. The easyGroup
member companies are connected by a common founder, share ownership, business
ethos and a uniform house branding style and identity; each member trades under
and by reference to marks prefixed by "EASY". The first easyGroup
company—easyJet Airline Company—was founded in 1995. Easyjet has at all times
been an operator of a commercial passenger airline trading under and by reference
to the mark EASYJET. Since November 2000, the Complainant has acted as the central
holder and administrator of the intellectual property rights owned by the easyGroup
companies and the EASY brand. By an agreement dated November 5, 2000, easyJet
assigned all its trademark and applications and registrations therefor to the
Complainant and was granted an exclusive license of the same in return. The
Complainant is therefore the legal owner of the trademark registrations together
with all unregistered rights in the EASYJET mark. easyJet sells its seats direct
to the consumers and the primary medium for sales (as well as advertisement
and promotion) is theis the Internet and therefore central to easyJet’’s commercial
strategy is its website "<www.easyjet.com"> which has been active
since at least 1998. By the summer of 2000, on-line reservations had increased
to an average of about 80% of the airline’’s total reservation.
It’’s clear, therefore, that easyJet enjoys a very high profile in media and
the Complainant’’s mark EASYJET is very well-known in the UK, Europe and beyond.
The Complainant has taken precaution of registering more than 1,700 domain names
related to easyJet’’s businesses, such as <wwweasyjet.net> or <www-easyjet.com>.
The Complainant is the proprietor of numerous trademark registrations in the
mark EASYJET in Benelux, France, Germany, Malta, Mexico, Norway, Sweden, Switzerland,
Untied Kingdom and United States. The trademark registrations are predominantly
concerned with the provision of air travel and transportation and related travel
goods and services. By the reason of the extensive use, promotion and advertising
of the easyJet and the Complainant are the proprietors of a substantial goodwill
and reputation in the use of the said mark in the field of aviation, travel
and leisure and in particular, in services offered and delivered by means of
the Internet.
The disputed domain name is in all material respects identical and is confusingly
similar to the Complainant’’s trademark EASYJET and the easyJet’’s website "<www.easyjet.com">
visually, phonetically and connotatively. The Complainant asserts that the Respondent’’s
registration and use of the disputed domain name represent the most blatant
form of typo-squatting.
The disputed domain name was registered on September 15, 2001. When accessed
the website at the disputed domain name, it resolves as follows:
(a) the user is presented with a bare, unloaded page for a website entitled
"VIP Fares" but which comprises a pop-up window informing the user
that it has won "Virtual Reality Casino". The window invites the user
to click on "OK".
(b) if the user selects "OK", a further window opens which displays
a website entitled "Winners play casino and sportsbook" and hosted
at "<super-casino.com>," which offers the Internet gambling
services.
(c) if the user attempts to close that window, the page is programmed so that
a "trap" effect occurs, a further window opens displaying another
Internet gambling website entitled "Club Dice Casino" and located
at domain name <clubdicecasino.com>.
(d) if the user selects "cancel" at stage (b) above, then the pop-up
window closes and the full VIP Fares site loads. The VIP Fares site appears
to offer flight, car rental and accommodation booking services.
The Complainant submits that the Respondent has not rights or legitimate interests
in respect of the disputed domain name. The Complainant has not authorized,
licensed or otherwise consented to the Respondent’’s use of its trademark EASYJET
and nor would it be likely to do so. The Complainant’’s attorney conduct world-wide
"watch-services" against registered and unregistered marks which are
confusingly similar to the Complainant’’s marks and which are used by parties
other than the Complainant or its licensees. Such searches have indicated that
easyJet is the only organization in the world known under the mark EASYJET.
The Complainant therefore believes that the Respondent is not and never has
been known by the disputed domain name or the mark EASYJET. Even if the Respondent
had accrued any rights in the mark EASYJET since registration of the disputed
domain name it is clear that these would be predated by the Complainant’’s by
a number of years.The Respondent has made no attempt to make honest, bona fide
commercial or non-commercial use of the disputed domain name. The Respondent’s
use of the disputed domain name is intended to mislead the Complainant’s and/or
easyJet’s customers and divert them to services from which the Respondent derives
profit, and/or to tarnish the Complainant’’s trademark EASYJET.
The Complainant contends that the disputed domain name was registered and has
been used in bad faith. . Because of the international notoriety of the Complainant’s
trademark EASYJET and the high profile of the airline and the easyJet Site,
the Respondent would have been fully aware of the Complainant’s and/or easyJet’s
rights and reputation prior to the registration of the disputed domain name
and was in any event on constructive notice of the trademark registrations and
other domain name registrations. The disputed domain name represents an example
of "typo-squatting", which is a deliberate attempt to exploit a common
typographical mistake of Internet users or search engines to lure Internet users
to the Respondent’s site. The disputed domain name is used to divert Internet
users to airline and travel services offered by the VIP Fares Site directly
or by organization for which the VIP Fares Sites acts as a portal. The Respondent
is calculated to deceive, mislead or confuse the public into believing that
there is a connection or affiliation in the course of trade between the Complainant
and/or easyJet and the activities carried on the disputed domain name or the
websites linked to from the disputed domain name, or the goods or services available
therefrom, alternatively confuse the public into believing that those activities
and goods and services are endorsed or sponsored by the Complainant and/or easyJet.
The opportunistic use of the disputed domain name to divert Internet users
to Internet gambling services and lure them into gambling will harm the goodwill
and reputation in the Complainant’’s mark EASYJET and the easyJet business.
B. Respondent’s Contentions
The Respondent did not reply to the Complainant’’s contentions.
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 is satisfied:
- The disputed domain name is identical or confusingly similar to a trademark
or service mark in which Complainant has rights; and
- Respondent has no rights or legitimate interests in respect of the disputed
domain name; and
- The disputed domain name was 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.
Moreover, in accordance with Paragraph 14(b) of the Rules, if a party, in the
absence of exceptional circumstances, does not comply with any provision of,
or requirement under, the Rules or any request from the Panel, the Panel shall
draw such inferences therefrom, as it considers appropriate.
A. Identical or Confusingly Similar
The Complainant owns the registrations for the trademark "EASYJET"
in many countries (Schedule 6 to the Complaint). The Complainant also proves
that, by reason of the extensive use, promotion and advertising of the easyJet
business by reference to the mark, it enjoys the substantial goodwill and reputation
in the use of the said mark in the field of aviation, travel and leisure, and
in particular, in services offered and delivered by means of the Internet. Also,
it is uncontested that the Complainant’’s rights in the trademark pre-date the
Respondent’s registration of the disputed domain name.
The disputed domain name <wwweasyjet.com> differs from Complainant’s
trademark "EASYJET" only to the extent of the addition of the prefix
"www". The Panel, therefore, opines that the addition of "www"
does not reduce or limit the likelihood of confusion. In fact, the letters "www"
may have the effect of focusing attention on the word succeeding them. In the
case of Reuters Limited v. Global 2000, Inc., WIPO
Case No. D2000-0441 (July 13, 2000), the Panel stated that "www"
was the well-known acronym for "world wide web" (normally used to refer to a
type of publicly-accessible Internet server) and thus had no distinguishing
capacity in a domain name context and concluded that the domain name "<wwwreuters.com"
> was confusingly similar to the REUTERS marks. As the Panel in that case
noted: "A casual reader of the domain name may wrongly think that there
is a period between the ‘‘www’’ and the succeeding word, and so wrongly assume
that the domain name is in fact comprised only of the succeeding word."
On the basis of the foregoing analysis, the Panel finds that the disputed domain
name is confusingly similar to the trademark in which the Complainant has rights.
B. No Rights or Legitimate Interests
The Complainants submits that the Respondent has no rights or legitimate interests
in the disputed domain name. The Respondent, whom did not file a Response, did
not dispute this contention nor provide information as to its interests to use
the dispute domain name.
The Policy presents the Complainant, under Paragraph 4(a)(ii), with the burden
of proving that the Respondent has no rights or legitimate interests in respect
of the disputed domain name. However, given the difficulty of excluding all
possible interests the Respondent may have in a name, the Panel believes it
proper to consider whether the Respondent has demonstrated its rights or legitimate
interests in the disputed domain name in accordance with Paragraph 4(c) of the
Policy in the overall evaluation of the evidence presented in this case (see
Wal-Mart Stores, Inc. v. Lars Stork, WIPO
Case No. D2000-0628, [August 11, 2000]).
There are three ways under Paragraph 4(c) by which the Respondent can demonstrate
to the Panel that it has rights or legitimate interests in respect of the disputed
domain name. However, given that the Respondent has not filed a response, no
evidence has been presented by the Respondent to the Panel to show that Respondent
is "commonly known by the disputed domain name" (Paragraph 4[c][ii]),
or "making a legitimate noncommercial or fair use of the disputed domain
name" (Paragraph 4[c][iii]).
Neither can the Panel find that the Respondent is using the disputed domain
name in a bona fide offering of goods or services (Paragraph 4[c][i]).
The Panel accessed the website at the address "<www.wwweasyjet.com>",
and found that it is primarily used as a portal for a site providing on-line
air tickets reservations and related travel services. Considering that the Complainant’s
trademark "EASYJET" has established the reputation in the field of
commercial passenger airlines and in particular, in services of on-line reservations
via the website at "<www.easyjet.com>," the Respondent’s subsequent
provision of the very similar services by using the domain name <wwweasyjet.com>
that is very similar to the Complainant’s trademark cannot be regarded as "bona
fide"..
Thus, in view of all the evidence submitted, the Panel concludes that the Respondent
has no rights or legitimate interests in respect of the disputed domain name.
C. Bad Faith
The Complainant contends that the disputed domain name was registered and is
being used in bad faith.
The Panel finds that the disputed domain name was registered in 2001, six years
after the Complainant started using the mark "EASYJET" and three years
after the Complainant started offering on-line reservations via the website
at "<www.easyjet.com>". Obviously, the Respondent was imitating
the Complainant’s trademark, which had become well known, particularly, online,
when registering the disputed domain name. The Panel, therefore, concluded that
the disputed domain name was registered in bad faith.
The Panel finds that the disputed domain name has been used as a portal of
a website entitled "VIP Fares", and attached with the pop-up windows
for on-line gambling sites. Once a user accesses the website "VIP Fares"
via the portal "<www.wwweasyjet.com>", "VIP Fares"
site at "<www1.vipfares.com>" will be automatically and immediately
loaded into the user’s computer.
It’s not clear what the relationship between the Respondent and "VIP Fares"
site is. However, since the Respondent is the registrant and the administrator
of the disputed domain name, the consequence of using the disputed domain name
as a portal of "VIP Fares" site should be attributed to the Respondent.
Since "VIP Fares" site, which is providing on-line air ticket reservations
in respect of various airlines, and the Complainant’s on-line reservation services
under and by reference to the mark "EASYJET", are in the same field
of business, the use of the disputed domain name as a portal of "VIP Fares"
site demonstrates an intentional attempt to attract, for commercial gain, Internet
users to "VIP Fare" site by creating a likelihood of confusion (caused
either by "typo-piracy" or by search engines) with the Complainant’s
marks. That in itself constitutes evidence of bad faith use under Paragraph
4(b) (iv) of the Policy.
There is some evidence that the pop-up windows for on-line gambling attached
to the portal site <"www.wwweasyjet.com"> and the mouse-trapping
technique (by which closure of one window would trigger the opening of another
one) used in generating "VIP ares" site and on-line gambling web pages
could damage the reputation of the Complainant’s mark "EASYJET", because
on-line gambling is illegal in many countries and the mouse-trapping technique
is extremely annoying to the Internet users. In light of the foregoing conclusion,
however, it is unnecessary to decide whether the Complainant would win the case
on this ground.
Therefore, the Panel finds that the disputed domain name was registered and
is being used in bad faith.
7. Decision
The Panel concludes that the disputed domain name <wwweasyjet.com> is
confusingly similar to the Complainant’s mark "EASYJET". The Panel
has also determined that the Respondent has no rights or legitimate interests
in the disputed domain name. The Panel lastly finds the disputed domain name
has been registered and is being used in bad faith because the Respondent’s
primary intent in registration and use of that name was to benefit commercially
from the likelihood of confusion between it and the Complainant‘s trademark.
Therefore, in accordance with Paragraphs 4(a) and 4(i) of the Policy and 15
of the Rules, the Panel orders that the domain name <wwweasyjet.com> be
transferred to the Complainant.
Xue Hong
Sole Panelist
Dated: February 28, 2003
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