Active Travel Ltd v Frontier Travel [2007] NZDNC 229
[2007] - NZDNC - 229
Transferred ; Complainant's Rights ; Degree of Name Similarity ; Unfair Registration
activetravel.co.nz - Transferred
The complainant was established in 1991 and specialised in tours and travel. They entered into a business arrangement with the respondent and the arrangement ended by 2003. The complainant had operated its business through activeco.co.nz since activetravel.co.nz was not available when the complainant was seeking to register a domain name.
The complainant argued that it had rights to the domain name and since the domain name was not used, it was effectively registered to block the complainant from using it, making it an unfair registration. The respondent filed no response.
ACTIVE TRAVEL is not a registered name but determined there are common law rights as it has been actively used since at least 1992 and the service has been distinguished by the name for at least 15 years.
The expert found the level and country codes ".co" and ".nz" do not impact the finding of confusing similarity. The domain name is identical to the mark that the complainant has rights in.
Although the Policy itself states that non-use of a domain name is not in itself evidence of unfair registration, the facts (considering the fact that the parties were in dispute with one another) show that the domain name was held to block registration. The expert decided that the domain name should be transferred.