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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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