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	Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Airline Seat Company v Real Choice [2007] DRS 4473 (16 April 2007) URL: http://www.bailii.org/uk/cases/DRS/2007/4473.html Cite as: [2007] DRS 4473

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Nominet UK Dispute Resolution Service DRS 04473

The Airline Seat Company v Real Choice

Decision of Independent Expert

1. Parties:

Complainant: The Airline Seat Company

Country: UK

Respondent: Real Choice

Country: UK

2. Domain Name:

canadian-affair.co.uk("the Domain Name")

3. Procedural Background:

The Complaint was lodged with Nominet on February 16, 2006. Nominet validated the Complaint and notified the Respondent of the Complaint on February 21, 2006 and informed the Respondent that it had 15 days within which to lodge a Response. No Response was received. On March 28, 2006 the Complainant paid Nominet the appropriate fee for a decision of an Expert pursuant to paragraph 7 of the Nominet UK Dispute Resolution Service Policy ("the Policy").

Dawn Osborne, the undersigned, ("the Expert") confirmed to Nominet that she knew of no reason why she could not properly accept the invitation to act as expert in this case and further confirmed that she knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question her independence and/or impartiality.

4. The Facts:

The Complainant is the owner of a Community trade Mark Registration for CANADIAN AFFAIR for, inter alia, travel agency services.

The Respondent, in the business of providing tickets for scheduled air transport and registered the Domain Name on March 20, 2004.

5. The Parties' Contentions:

Complainant:

The substance of the Complaint is as follows:

1. The Complainant is the owner of a Community trade Mark registration for CANADIAN AFFAIR for, inter alia, travel agency services.

2. CANADIAN AFFAIR is the trading name of the Complainant which has been established for eleven years and has a multimillion pound turnover.

3. The Domain Name in the hands of the Respondent is abusive because at the time of its registration and subsequently the Domain Name has been used in a manner that takes unfair advantage of the Complainant's rights. In April 2006 the Domain Name was pointed to the website www.cheapeticket.co.uk offering tickets for scheduled air transport. The Respondent denied in correspondence that it was involved in travel related services, but the Complainant demonstrated by research at Companies House that the Respondent was a scheduled air transport business.

Respondent:

No response was received.

6. Discussion and Findings:

General

To succeed in this Complaint the Complainant has to prove to the Expert pursuant to paragraph 2 of the Policy on the balance of probabilities, first, that it has Rights (as defined in paragraph 1 of the Policy) in respect of a name or mark identical or similar to the Domain Name and, secondly, that the Domain Name, in the hands of the Respondent, is an Abusive Registration (as defined in paragraph 1 of the Policy).

Complainant's Rights

The Complainant is the proprietor of a registered trade mark for CANADIAN AFFAIR. The Domain Name consists of the Complainant's trade mark, adding only a hyphen between the two words making up the mark. The addition of a hyphen is not sufficient to distinguish the Domain name from the Complainant's trade mark. As such the Expert finds that the Complainant has rights in respect of a name or mark, which is similar to the Domain Name.

Abusive Registration

This leaves the second limb. Is the Domain Name, in the hands of the Respondent, an Abusive Registration? Paragraph 1 of the Policy defines "Abusive Registration" as:-

"a Domain Name which either:

i. was registered or otherwise acquired in a manner, which at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant's Rights; OR

ii. has been used in a manner, which took unfair advantage of or was unfairly detrimental to the Complainant's Rights."

A non-exhaustive list of factors, which may be evidence that the Domain Name is an Abusive Registration is set out in paragraph 3a of the Policy. Potentially relevant 'factors' in paragraph 3 are to be found in subparagraph i and ii, which read as follows:

i "Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name:

A. [intentionally omitted];

B. as a blocking registration against a name or mark in which the Complainant has rights; or

C. for the purpose of unfairly disrupting the business of the Complainant;"

ii "Circumstances indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant."

The Expert is of the opinion that the Respondent's registration and use of the Domain Name is indicative of relevant abusive conduct.

There is no evidence of actual confusion. However, there is no obvious reason why the Respondent might be said to have been justified in registering the Domain Name and it has not responded to the Complaint. It is a competitor of the Complainant and appears to have intended to ride on its goodwill by diverting travel business intended for the Complainant to itself. As such the conduct would appear to be abusive under sub paragraphs 3 (a) (i) (B) and (C) of the Policy as intending to disrupt the business of the Complainant and as a blocking registration against a name or mark in which the Complainant has Rights.

Accordingly, the Expert finds that the Domain Name is an Abusive Registration within the definition of that term in paragraph 1 of the Policy.

7. Decision:

In light of the foregoing findings, namely that the Complainant has rights in respect of a name or mark which is similar to the Domain Name and that the Domain Name, in the hands of the Respondent, is an Abusive Registration, the Expert directs that the Domain Names, canadian-affair.co.uk be transferred to the Complainant.

Dawn Osborne Date April 16, 2007