WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Airasia Berhad v. Park sung mo
Case No. D2011-0933
1. The Parties
The Complainant is Airasia Berhad of Malaysia, represented by IP Mirror Pte Ltd, Singapore.
The Respondent is Park sung mo of Republic of Korea.
2. The Domain Name and Registrar
The disputed domain name <airasiakorea.com> is registered with Dotname Korea Corp.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 31, 2011. On May 31, 2011, the Center transmitted by email to Dotname Korea Corp. a request for registrar verification in connection with the disputed domain name. On June 21, 2011, Dotname Korea Corp. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 30, 2011, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on July 5, 2011.
The Center verified that the Complaint together with the amendment to 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”).
On July 1, 2011, the Center issued a language of proceedings notification in both Korean and English, inviting comment from the parties. On July 1, 2011, the Respondent sent an email requesting Korean to be the language of the proceedings. The Complainant also submitted a request that English be the language of the proceedings on July 4, 2011. On July 7, 2011, the Center notified the parties of its preliminary decision to 1) accept the Complaint as filed in English; 2) accept a Response in either Korean or English; and 3) appoint a panel familiar with both languages mentioned above, if available and also advised the parties that the administrative panel when appointed would have the authority to determine the language of the proceeding.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 7, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was July 27, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 28, 2011.
The Center appointed Ik-Hyun Seo as the sole panelist in this matter on August 3, 2011. 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.
Due to unforeseen circumstances, the Panel found it necessary to extend the due date for the decision to August 24, 2011 and the parties were so notified.
4. Factual Background
The Complainant is a budget airline company headquartered in Malaysia, which provides airline services with travel routes to over 20 countries. The Complainant was incorporated in 1993 and has been operating as an airline since 2001.
The Respondent appears to be a Korean individual with a residence in Republic of Korea.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to marks in which the Complainant has rights. More specifically, the Complainant has a Community Trade Mark (CTM) registration for AIRASIA (No. 004577417) and a Malaysian trademark registration for AIRASIA.COM (No. 03007064), which are wholly incorporated in the disputed domain name. The additional portion “Korea” need not be considered as it is a geographic indication.
The Complainant also contends that the Respondent has no rights or legitimate interests in the disputed domain name, and confirms that it has not authorized or licensed rights to the Respondent in any respect.
Finally, the Complainant contends that the disputed domain name was registered and used in bad faith. First, the Complainant notes that the Respondent operated a phishing website using the AIRASIA mark and logos which shows that the Respondent was aware of the Complainant’s rights and services and attempted to obtain improper revenue from the goodwill of the AIRASIA brand. Second, the Respondent rejected the Complainant’s offer of USD 20 for transfer of the disputed domain name and demanded USD 3,500, which is in excess of the Respondent’s out-of-pocket expenses in connection to the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Preliminary Issue: Language of the Proceeding
Paragraph 11 (a) of the Rules provides that the language of the proceeding shall be the language of the registration agreement, unless otherwise agreed to by the parties, subject to the authority of the panel to determine otherwise. In this case, the language of the registration agreement is Korean, and the Complainant submitted arguments as to why English is more appropriate, citing a number of factors.
First, the Panel notes that English does not appear to be the mother language of either party. Given the fact that the Complainant is based in Malaysia and the Respondent is based in Republic of Korea, English would appear to be the fairest neutral language for rendering this decision. Besides, both parties were given the opportunity to submit arguments in the language of their preference, and the language in which to render the decision is reserved for the Panel in accordance with paragraph 11 of the Rules. Furthermore, the Panel notes that all of the Center’s communications have been transmitted to the parties in both English and Korean. Also given that the Respondent responded to the Complainant’s cease and desist letter and follow-up emails solely in English and has chosen to not participate in this proceeding, the Panel sees no justification for rendering the decision in Korean in view of the overall circumstances.
Therefore, the Panel finds it proper and fair to render this decision in English in this case.
A. Identical or Confusingly Similar
The Complainant has demonstrated with supporting evidence that it holds a CTM registration for AIRASIA and a Malaysian trademark registration for AIRASIA.COM. The disputed domain name <airasiakorea.com> entirely incorporates the Respondent’s trademarks, and simply adds the additional portion “Korea”, which is a geographic designation. Prior UDRP panels have determined that the addition of a country name such as “Korea” to a mark renders it confusingly similar to the underlying mark – in this case, AIRASIA (eBay Inc. v. Sunho Hong, WIPO Case No. D2000-1633). The disputed domain name also suggests that the website at the disputed domain name is that of the Complainant’s Korean subsidiary. Accordingly, the disputed domain name <airasiakorea.com> can be viewed as confusingly similar to the Complainant’s trademarks.
For the reasons mentioned above, the Panel finds that the first element has been established.
B. Rights or Legitimate Interests
On the basis of the present record, the Panel finds that the Complainant has made the required allegations to support a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name. Once such a prima facie basis has been established, the Respondent carries the burden of demonstrating its rights or legitimate interests in the disputed domain name. However, the Respondent in this case has chosen to file no Response. Accordingly, there is no evidence or allegation in the records that would warrant a finding in favor of the Respondent on this point.
For the reasons provided above, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, and that the second element has been established.
C. Registered and Used in Bad Faith
The Panel finds that there are more than sufficient reasons to find bad faith in this case. First, the Respondent rejected the Complainant’s offer of USD 20 for transfer of the disputed domain name and demanded USD 3,500. Evidence suggests that this amount would be well in excess of the Respondent’s out-of-pocket costs related to the disputed domain name, and prior UDRP panels have confirmed that an offer to sell a domain name for a sum in excess of the related out-of-pocket costs is clear evidence of bad faith registration and use. (CBS Broadcasting, Inc. v. Gaddoor Saidi, WIPO Case No. D2000-0243)
Second, evidence shows that the disputed domain name was used at one point as a phishing site which was made to appear related to the Complainant in its unauthorized use of the Complainant’s logo, mark, photos and other materials. Such use demonstrates that the Respondent was aware of the Complainant, its services and trademark. It also shows that the Respondent sought to improperly benefit from the confusion that such use could create among Internet users.
Third, the Respondent redirected the domain name to the Complainant’s official site after being contacted by the Complainant. This further demonstrates that the Respondent was aware of the Complainant and the Complainant’s rights in the domain name.
The disputed domain name currently forwards to the website, “www.staythai.net”, which the Respondent owns and operates. The website “www.staythai.net” apparently provides information in Korean about living and travelling in Thailand, and also includes some banners and links to commercial enterprises. This is common practice among cybersquatters, who use domain names in order to attract Internet users and generate advertising revenues based on the Internet traffic directed to the website. Given this set of circumstances, there is little doubt that the Respondent registered and used the disputed domain name in bad faith in the present case.
For the reasons given above, it is clear that this third and final element has been established.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <airasiakorea.com> be transferred to the Complainant.
Dated: August 22, 2011