Thai Airways International Public Company Limited v E-Promote [2007] NZDNC 203
[2007] - NZDNC - 203
Transferred ; Complainant's Rights ; Unfair Registration ; CMD
thaiairways.co.nz - Transferred
The complainant claimed to have operated consistently for a long period of time. The complainant has not produced evidence of registered trade marks and it is not the responsibility of the expert to do that work for them. However, it was clear that there was some logo and marks that the business has used consistently for years. The complainant has registered many domain names across the world that contained the phrase 'thaiair'.
The respondent registered the domain name in 2005 and resolves at a website that provides links to the respondent's sponsored websites. Some of those links would resolve at travel-related websites, others do not.
The complainant asserts that its operation is recognised worldwide and the users expect THAI AIR to be related to their international air travel agency. There is evidence of users being confused when trying to access the complainant's site and ending up at the respondent's instead. The complainant claims the registration is unfair since the respondent is using their trade name to mislead customers.
Due to the inherently low threshold of what would be considered 'rights' under the Policy, the expert found that the complainant had acquired rights in its trading name and its logo coupled with the word THAI, which it had obtained through years of commercial use. The expert did not consider in detail whether the complainant had rights in the phrase THAI AIRWAYS, as he could determine the matter without considering it.
The expert considered that the distinctive part of the complainant's trade name is THAI AIRWAYS and it is identical to the domain name. The domain name is also similar to the THAI logo mark. Since the logo itself cannot be made into a domain name, the word element of it; along with the service that it provides, is similar to the domain name.
Ultimately, it was found as an unfair registration since it was clear that the use of the domain name would lead to users being confused and would divert activity away from the complainant.