ADMINISTRATIVE PANEL DECISION
Under the ICANN Uniform Domain Name Dispute Resolution
1. Parties and Contested Domain Name
The Complainant is Kenya Airways Limited, a company incorporated under Kenyan law, with address at P.O. Box 19002, Embakasi Nairobi, Kenya. This company is represented by Rod Margo with offices at 1801 Avenue of the Stars, Suite 1450, Los Angeles, CA 90067, USA.
The Respondent is Caroline Kariemu, with address at 701 Deer Run, Norristown, PA 19403, USA.
The domain name at issue is 'kenyaairways.com' registered with Register.Com on 3 May, 1999 ("Domain Name").
2. Procedural History
The electronic version of the Complaint form was filed on-line through eResolution's Web site on 8 August, 2000. No response was filed by the Respondent.
On 11 October, 2000, the Clerk's Office contacted Mr. Geert Glas, and requested him to act as panelist in this case.
On 11 October, 2000, Mr. Geert Glas accepted to act as panelist in this case and filed the necessary Declaration of Independence and Impartiality.
On the same day, the Clerk's Office forwarded a user name and a password to Mr.Glas, enabling him to access the Complaint Form, the Response Form, and the submitted evidence through eResolution's Automated Docket Management System.
3. Factual Background
Complainant was incorporated in January 1977 as a company wholly owned by the Kenyan Government.
It appears from the company description that Complainant has grown these last years from a small and limited field of operation to a company which has expanded internationally (It has been doing business in the United States for over 2 years and has now a partnership with KLM).
Complainant is the holder of several registered Kenyan trademarks covering the words "Kenya Airways" which were registered for goods and services of class 12 (registration number 30526) and of class 16 (registration number 30527).
These trademarks have been renewed on the 10th of November 1989 for a period of 14 years.
On 3 May 1999, Respondent registered the Domain Name. The Domain Name does not resolve to any web site.
By formal letter dated June 5, 2000, Complainant requested a transfer of the Domain Name.
The Panel is not aware of any reply to this request.
4. Parties' Contentions
The Complainant contends that Respondent has registered a domain name which is identical to its name and trademark.
The Complainant contends that the Respondent has no legal right to make use of the Domain Name, and
that it is not being used for a legitimate non-commercial purpose.
The Respondent has not filed a response.
5. Discussion and Findings
This procedure is regulated by the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy") and by the Rules of Uniform Domain Name Dispute Resolution Policy (the "Rules").
According to article 4(a) of the Policy, Complainant must submit evidence establishing that in a specific case each of the following three elements are present:
(i) that the domain name is identical or confusingly similar to a trade mark or service mark to which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
a) Identity or Similarity
There is no doubt that the juxtaposition of the words "kenya" and "airways" in the Domain Name is identical to the trademark "Kenya Airways" as registered by the Complainant.
Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks or to apply for any domain name incorporating any of those marks, nor has he ever been known by this name.
By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to paragraph 4c of the Policy, any rights or legitimate interests in the Domain Name.
Therefore the Administrative Panel finds that Respondent has no legitimate right or interest in the Domain Name.
c) Bad faith
It is fair to say that the Domain Name, in itself a mere description, refers to Complainant and to Complainant alone as is the case for most (state-owned) airlines (e.g. Singapore Airlines, Saudi Arabian Airlines, South Africa Airlines).
It can reasonably be assumed that someone who registers a domain name which consists of the name of an airline is either aware of the names of existing airlines or verifies, prior to the registration of the domain name, whether the chosen name corresponds to the name of an existing airline. This is even more the case when the chosen name is not original but merely descriptive of the airline of a given country and consists of the name of that country and the word "airways".
Respondent therefore could not have been unaware of Complaint and its trademarks when registering the Domain Name.
As a result of this registration, Respondent has been preventing Complainant from expressing its name and trademark in the corresponding Domain Name.
Although Respondent has had the Domain Name for 18 months now, it has failed to make any use of it, which confirms that Respondent did not have bone fide intentions when registering the Domain Name and has not made a bone fide use of the Domain Name since then.
By failing to respond to the Complainant's letter of 5 June, 2000, and by failing to complete the response form, the Respondent failed to assert its rights and to provide any argument or information which would shed a different light on its bad faith behaviour.
The panelist may conclude from these elements that the Domain Name was registered and has been used in bad faith.
For the above reasons, the panelist holds that the three requirements requested by the policy are present in this case, and consequently, in accordance with the remedy sought by the Complainant, orders "kenyaairways.com" to be transferred to the Complainant.
Brussels, 20 November 2000
(s) Geert Glas