{
    "case_number": "CAC-ADREU-004141",
    "time_of_filling": null,
    "domain_names": [],
    "case_administrator": null,
    "complainant": [],
    "complainant_representative": null,
    "respondent": [],
    "respondent_representative": null,
    "factual_background": "The present case arises further to a complaint filed by the French Company, Air France, which is one of the world’s major airline companies. \r\n \r\nThe Respondent, Lexicon Media, Ltd registered the domain names “airfrancesucks” and “airfrance-jp” on 7 April 2006, during the so-called \"landrush period\". EURid activated and registered the respective domain names for the Respondent in accordance with its rules. \r\n \r\nHaving become aware of the registrations, the Complainant lodged a complaint on 5 January 2007 (with the date of filing established as 10 January 2007 by The Czech Arbitration Court (“CAC”)).  \r\n \r\nIn accordance with paragraph A 2 (k) of the ADR rules, EURid transmitted the relevant information on the registrant of the contested domain names.  \r\n\r\nOn 12 January 2007, The CAC sent to the Complainant a non-standard communication requesting to amend the incorrect “mutual jurisdiction”. This modification was made the same day by choosing the Respondent’s address. \r\n\r\nOn 19 January 2007, the CAC informed the Respondent of the Complaint, both by e-mail and registered letter. The letter was returned to the CAC by post with the mention “unknown recipient”. This document was received on 2 February 2007. \r\n\r\nOn 22 March 2007, the CAC, having not received any response from the Respondent, issued a “Notification of Respondent’s Default”, which was not challenged within the set timeframe. \r\n\r\nTherefore, the Panel was appointed and duly filed the “statement of acceptance and declaration of impartiality and independency\".",
    "other_legal_proceedings": "As far as the Panel is aware, there are no other legal proceedings that have been initiated or terminated in connection with, or relating to, the domain names <AIRFRANCESUCKS.EU> and <AIRFRANCE-JP.EU>, the subject of this Complaint.",
    "discussion_and_findings": "Before deciding on the merits of the Complaint, the Panel would point out that Paragraph B. 3 (f) of the ADR Rules states that “if a Respondent does not submit a Response or submits solely an administratively deficient Response, the Provider shall notify the Parties of Respondent’s default. The Provider shall send to the Panel for its information and to the Complainant the administratively deficient Response submitted by the Respondent.” Moreover, Paragraph 10 (a) of the ADR Rules states that “in case of default of one of the Parties, the Panel may consider this failure to comply as grounds to accept the claims of the other Party”. The fact that the Respondent did not challenge the Complaint will be taken into account. \r\n\r\nFirst and foremost, the Panel, after examining the documents and arguments, concludes that neither the trademark rights of the Complainant nor the repute of trademark AIR FRANCE in its field of activity are questionable. \r\n\r\nSecondly, the Panel, in the absence of response from the Respondent, has to determine whether or not the Complainant has proven that the registered domain names are identical or confusingly similar to a name in respect of which a right is recognized or established by the national law of member state, and the domain name has been registered by the Respondent without rights or legitimate interest in the name or used in bad faith. The Panel will examine each point: \r\n\r\n1\/ Identical or Confusingly Similar: \r\n\r\nThe Panel is of the opinion that it is not bound by previous decisions in ADR or UDRP cases for the principal reason that the cases are very often, if not always, based on very specific facts; one case may differ to another solely on factual arguments more than the comparison of the domain names. \r\n\r\nHowever, the Panel, for the sake of equity and all fairness, considers that it has to review the ADR\/UDRP “Case law”. \r\n\r\nIn light of this, the Panel considers that the domain names are indisputably similar to the denomination “AIR FRANCE”, the rights to which are owned by the Complainant. Yet, the Panel must also determine whether or not adding of the element “sucks” or “jp” is sufficient to distinguish the domain names from the prior right. \r\n\r\n- <airfrance-jp.eu>: adding the nondistinctive element JP,  as correctly stated by the Complainant the ISO Code for Japan, would be considered undoubtedly as such, and this would be known by any consumer. Moreover, the risk of confusion is increased by the fact the Complainant is already operating domain names with an identical structure, i.e., company_name_JP under other Top Level Domain (“TLD”). \r\n\r\n- <airfrancesucks.eu>: The Complainant strives to demonstrate that the term “sucks” is slang used to denigrate something or somebody, to indicate a disapprobation with, and (more generally) rude criticism—that it is a pejorative word causing a nuisance to its repute. \r\n\r\nMoreover, the Complainant contested, prima facie, any possible reply based on the freedom of speech. \r\n\r\nThe Oxford’s Advanced Learner’s Dictionary (6th edition – 2000) defines the term “sucks” as “the slang used to say that something is bad”. This definition shows, in the opinion of the Panel, that simply adding pejorative word to the Complainant’s company name, by no means otherwise, would not be sufficient to put aside a risk of confusion. \r\n\r\nThe Panel, however, concurs with the notion that every case must be assessed on its own merits, and the Panel agrees with the remarks made by the Complainant. The panel concludes that if the contested domain names are not identical, they are at least no doubt confusingly similar. \r\n\r\n2\/ Rights or Legitimate Interests: \r\n\r\nThe Complainant alleges that the Respondent has no rights or legitimate interests in the contested domain names. \r\n\r\nAs far as the right or legitimate interest are concerned, it must be stressed that, in most cases, it is sometimes very harsh for a Complainant to demonstrate with absolute certainty the absence of a right or legitimate interest of a Respondent.\r\n \r\nThe Panels usually expects the Complainant to make a reasonable demonstration rather than bring absolute evidence. This demonstration rests on the various facts and legal elements of each case. \r\n \r\nThe response is then the occasion for the Respondent to challenge and contradict the reasonable demonstration of the Complainant and to draw the Panel’s attention on other facts and legal elements to support its view. \r\n\r\nIn this case, the least that can be said is that the complaint is quite persuasive. \r\n \r\nIt underlines facts and legal elements that are indeed good signs that the domain name “has been registered by its holder without rights or legitimate interest in the name” (art. 21 of EC regulation 874\/2004), as per the factual and legal elements depicted in the section “Parties’ contentions”. \r\n \r\nThe respondent had a chance to reply; it chose not to. Such an attitude may be construed as an absence of rights or legitimate interest by the Panel.\r\n\r\n3\/ Registered and used in Bad Faith: \r\n\r\nAlthough this criterion is an alternative, and not something cumulative to the legitimate rights or interests, it would be examined for the sake of completeness.  \r\n\r\nBad faith registration: \r\n\r\nThis point cannot be denied considering the well-known aspect of the Complainant's trademark, which as it has already been decided “creates a prima facie presumption that the respondent registered the domain name for the purpose of selling it to Complainant or one of its competitors, or that it was intended to be used in some way to attract for commercial gain users to the website by creating a likelihood of confusion with Complainant's mark\". \r\n\r\nBad faith use: \r\n\r\nThis point seems to be more delicate to determine, as the domain names are not exploited. How can “use in bad faith” be determined? Should “passive holding” be taken into consideration, as such, and would it be sufficient to prove “use in bad faith”?  \r\n\r\nThe Panel is of the opinion that use in bad faith has to be appreciated essentially in view of factual elements such as the length or absence of use, the presence of static web pages, i.e. “under construction”, or again “parking web pages”. \r\n\r\nHowever, among all these possible ways to put a domain name in “stand-by” for real and effective exploitation, some have to be construed carefully. Indeed, the sole idea of the period of time when the domain name is not really in use and being an effective form of exploitation cannot always be, in itself, sufficient. Indeed, to secure a project, one would reserve a domain name with one or several extensions or combinations as early as possible.  Then, one would need to finalize his\/her web page design. \r\n\r\nWould a “passive holding” necessarily constitute “use in bad faith”? \r\n\r\nThe Panel would like to mention that the principle of specialty of trademark rights may constitute an obstacle to an administrative complaint, in presence of an identical or confusingly similar domain name. Therefore, a “passive holding” in such a case would deny the rights of the holder of a domain name for different goods or services than those claimed by the Complainant and lead the Panel to an unfair decision. \r\n\r\nThus, “passive holding” may, according to the facts of each and every case, be considered as a use in bad faith, but it cannot be systematic to demonstrate it as such. \r\n\r\nIn the present case, the Panel is confronted with a trademark with a strong repute and confusingly similar domain names to the Complainant’s rights. Again, there is no proof whatsoever that the use of the term “sucks” was intended to criticize the Complainant’s company – where in certain extremely specific circumstances, freedom of speech could have been raised as a defense- but, rather, simply to disrupt the Complainant’s business.\r\n\r\nIn conclusion, the Panel decides that the domain names shall be transferred to the Complainant.",
    "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 of the ADR Rules and B11 (b) of the ADR Rules, \r\n\r\nthe Panel orders that the domain names <AIRFRANCESUCKS> and <AIRFRANCE-JP> be transferred to the Complainant\r\n \r\nThis decision shall be implemented by the Registry within thirty (30) days after the notification of the decision to the Parties, unless the Respondent initiates court proceedings in a Mutual Jurisdiction. ",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2007-04-28 00:00:00",
    "informal_english_translation": "The Complainant requested to receive the transfer of the disputed domain names <AIRFRANCESUCKS.EU> and <AIRFRANCE-JP.EU> based on the existence of prior rights on the terms AIR FRANCE and the worldwide repute of this trademark, as well as its company name. The Complainant further argued that (i) the domain name was confusingly similar to its trademark rights, (ii) the domain name was registered with no rights or legitimate interests, and (ii) the domain name has been used in bad faith.  \r\n \r\nFirst, the Panel dealt with the question arising from the default of the Respondent to reply and concluded that this default can be taken into consideration in assessing the case. \r\n \r\nThe Panel then examined whether or not the Complainant has proven that the registered domain name is identical or confusingly similar to a name in respect of which a right is recognized or established by the national law of a Member State, and whether or not the domain name has been registered by the Respondent without rights or legitimate interest in the name or has used it in bad faith. \r\n \r\nThe Panel considered that all three conditions were met and decided to transfer the domain names <AIRFRANCESUCKS.EU> and <AIRFRANCE-JP.EU> to the Complainant.",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}