Joint Stock Company “Aeroflot - Russian Airlines” v. Koba Gigineishvili
Case No. D2012-1181
1. The Parties
Complainant is Joint Stock Company “Aeroflot - Russian Airlines” of Moscow, Russian Federation, represented by Irina A. Kholina, Russian Federation.
Respondent is Koba Gigineishvili of Tbilisi, Georgia.
The disputed domain name is registered with Go Australia Domains, Inc. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 9, 2012. On June 11, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 11, 2012, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on June 15, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was July 5, 2012. On June 15, 2012, the Center received an email communication from Respondent. The Center acknowledged receipt of Respondent’s email on June 19, 2012 and advised Respondent to consult the Response filing guidelines available at the Center’s website. Respondent did not reply formally prior to the July 5, 2012 deadline. Accordingly, the Center notified the parties about the commencement of panel appointment process on July 6, 2012.
The Center appointed Clark W. Lackert as the sole panelist in this matter on July 13, 2012. 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.
4. Factual Background
Complainant is a legal entity based in the Russian Federation. Complainant is registered to do business in the Russian Federation as “Aeroflot Russian Airlines” and “Aeroflot”. Complainant has been registered with the Chamber of Commerce of the Russian Federation since June 21, 1994.
Complainant owns trademark rights in AEROFLOT RUSSIAN AIRLINES & Design in various countries. Complainant is an airline which operates flights within the Russian Federation and internationally under the AEROFLOT mark.
Respondent is an individual from Georgia who registered the disputed domain name on December 10, 2011.
The record shows that the disputed domain name has featured content in the Russian and English languages and photographs and images.
5. Parties’ Contentions
Complainant contends that the disputed domain name is confusingly similar to its AEROFLOT RUSSIAN AIRLINES trademark because it utilizes the term “aeroflot”, a term Complainant notes is identical to a portion of its trademark. Complainant maintains that use of “aeroflot” in a generic top-level domain name (gTLD) extension (“.xxx”) creates a domain name which has the potential to create consumer confusion. Complainant maintains that its trademark is well-known in countries throughout the world because it is used for an airline which operates international flights.
Complainant maintains that it has never authorized Respondent to use its trademark and that Complainant’s reputation and notoriety makes it highly unlikely that Respondent was unaware of Complainant’s trademark rights when registering the disputed domain name. Complainant contends that the content of the disputed domain name shows that Respondent is aware of Complainant, and that this content has the potential to create consumer confusion. Complainant also notes that Respondent is not using the disputed domain name for a bona fide offering of goods or services, and that Respondent’s use has the potential to disrupt Complainant’s business activities.
Respondent did not submit a formal reply to the Complaint. Respondent noted in an email dated June 15, 2012 that he is a member of an adult sponsored community and that he registered the disputed domain name when it was available for public sale outside of sunrise periods.
6. Discussion and Findings
Complainant’s registered trademark is AEROFLOT RUSSIAN AIRLINES + Design. The record shows that Complainant trades under this name and the name “Aeroflot”. The Panel is satisfied that the disputed domain name is confusingly similar to the AEROFLOT RUSSIAN AIRLINES trademark due to its use of the distinctive “aeroflot” portion of the trademark, and identical to the name “Aeroflot”.
The Panel notes that this dispute involves a domain name with the “.xxx” extension, the gTLD extension reserved primarily for adult content. The Panel agrees with prior panels that this does not preclude a finding of likelihood of confusion. See, e.g., Borçelik Çelik Sanayi Ticaret Anonim Şirketi v. Contact Privacy Inc. / Naci Varol, WIPO Case No. D2012-0083. A risk of consumer confusion remains given the use of Complainant’s distinctive trademark in the disputed domain name and the use of “Aeroflot” and AEROFLOT RUSSIAN AIRLINES by complainant for services internationally.
The Panel finds that the requirements of paragraph 4(a)(i) of the Policy have been satisfied.
B. Rights or Legitimate Interests
There is no evidence in the record which indicates that Respondent is associated or affiliated with Complainant. There is also no evidence in the record that Respondent has any rights or legitimate interests in the term “aeroflot”.
Complainant has made out its prima facie case that Respondent lacks rights or legitimate interests, which Respondent has not rebutted. Respondent has admitted to registering the domain name when it became available after several sunrise periods, but has not presented any evidence of rights or legitimate interests in the term “aeroflot”.
Accordingly, the Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The record shows that Complainant has established trademark rights in “Aeroflot” and AEROFLOT RUSSIAN AIRLINES + Design which precede the registration of the disputed domain name. Respondent’s use of “aeroflot” in the disputed domain name indicates that he was aware of Complainant’s trademark when registering the disputed domain name. Any doubts in favor of Respondent are minimized upon consideration of Respondent’s lack of formal reply to the Complaint and the results of Internet searches for ”aeroflot”, which consist predominantly of links to pages regarding Complainant and its services.
The Content of the disputed domain name indicates that Respondent is aware of Complainant. Specifically, the content consists of photographs of people posing as airline employees, specifically stewardesses. This content is indicative of efforts by Respondent to trade off the goodwill of Complainant’s trademarks and divert web traffic. Registration of a domain name incorporating another party’s trademark and use of the domain name to display content related to services provided under that trademark has been held to be indicative of a respondent’s knowledge of the goods or services provided under the trademark. See Caesars World, Inc. v. Forum LLC, WIPO Case No. D2005 0517.
By registering the disputed domain name and displaying content related to the services provided by Complainant under the marks “Aeroflot” and AEROFLOT RUSSIAN AIRLINES + Design, Respondent is diverting traffic in violation of paragraph 4(b)(iv) of the Policy. There is no evidence in the record to refute this conclusion. Registration of a domain name which is identical or confusingly similar to a trademark for the purpose of displaying content related to products or services offered under that mark is indicative of bad faith in violation of paragraph 4(b)(iv) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to Complainant.
Clark W. Lackert
Dated: August 1, 2012