Auckland Airport v Dave Burghardt [2008] NZDNC 291
[2008] - NZDNC - 291
Dismissed - Rights ; Complainant's Rights
aucklandairport.co.nz - Dismissed - Rights
The complainant is known internationally as Auckland Airport. The respondent is a business in taxi and car rental service and purchased the domain name in 2001.
The complainant alleged that the respondent had unfairly registered the domain name for Auckland Airport, which had little to no connection to the respondent's business. The complainant submitted that the respondent intended to divert business away from the complainant by the registration. While the domain name does contain criticism of the respondent's business, the complainant asserted that it was not operated solely as a criticism site, which excluded the respondent from being considered under paragraph 6.2 for fair use.
The respondent argued that Auckland Airport was a generic term and that its business did have a connection with Auckland Airport. The respondent denied that the domain name had the effect of diverting users as the complainant alleged it did, since the complainant's domain name still remained the first of search results and users will have to search specifically to access the respondent's website. The complainant asserted that the respondent must have been aware of the possibility that users would try to enter the disputed domain name when intending to reach the complainant's website and the respondent cannot deny that it would be misleading for users.
The expert expected that unregistered rights would be the way that the airport asserts its rights. However, the mark consists of two descriptive components and the complainant needs to establish that it had gained distinctiveness through the use of the mark and the extent that the mark has been publicised. No evidence has been provided by the complainant as to the distinctiveness of its mark so the expert dismissed the case on this ground.