Split panel transfers domain names to SN Brussels Airlines
In Delta Air Transport NV (trading as SN Brussels Airlines) v De Souza, the majority of a three-member World Intellectual Property Organization (WIPO) panel has ordered the transfer of the domain names 'brussels-airliner.com' and 'brusselsairline.com' to the Belgian national airline SN Brussels Airlines.
The dispute arose because Euthyme de Souza failed to obtain a refund for a ticket when the Belgian airline Sabena went bankrupt. De Souza considered SN Brussels Airlines to be Sabena's successor and gave vent to his anger on a website hosted under the domain names 'brussels-airliner.com' and 'brusselsairline.com', which were registered by his relative, Theodule de Souza. SN Brussels Airlines filed a complaint with WIPO after discovering that (i) de Souza was planning to intensify his anti-publicity campaign if the ticket and supplementary costs were not entirely reimbursed, and (ii) emails sent to SN Brussels Airlines that missed an 's' in the email address received an automatic reply telling the sender to be careful in choosing his/her airline and inviting him/her to visit the protest website.
The panel ordered the transfer of the disputed domain names. The majority of the panel recognized the airline's rights in the registered mark SN BRUSSELS AIRLINES and unregistered mark 'Brussels Airlines', even though (i) the marks are descriptive, and (ii) the airline did not offer evidence of actual use to establish unregistered trademark rights. Further, the majority found that (i) de Souza abused his free speech rights by deceiving internet users into visiting the protest site, and (ii) sought financial benefit in demanding ticket refunds from the airline.
Panellist G Gervaise Davis III did not support the transfer of the domain names. He argued that panels should decide cases under the Uniform Domain Name Dispute Resolution Policy on the basis of abusive commercial registration of a trademark as a domain name, rather than on the basis of trademark infringement. Davis found no evidence to support a finding of abusive registration of a trademark in the case at hand. Instead, he found that de Souza used the domain names to direct users to a website that criticized the airline, thereby exercising free speech and not engaging in commercial use of the mark.
James L Bikoff and Patrick L Jones, Silverberg Goldman & Bikoff, Washington DC (with the assistance of Rachel Losk, Georgetown University Law Centre)
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