{
    "case_number": "CAC-UDRP-104657",
    "time_of_filling": "2022-06-28 09:12:18",
    "domain_names": [
        "kiwi-avia.com"
    ],
    "case_administrator": "  Iveta Špiclová   (Czech Arbitration Court) (Case admin)",
    "complainant": [
        " Kiwi.com s.r.o."
    ],
    "complainant_representative": null,
    "respondent": [
        "Tufano Marco"
    ],
    "respondent_representative": null,
    "factual_background": "FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:\r\n\r\nTHE DISPUTED DOMAIN NAME IS IDENTICAL OR CONFUSINGLY SIMILAR TO A TRADEMARK OR SERVICE MARK IN WHICH THE COMPLAINANT HAS RIGHTS\r\n\r\nThe Complainant provides reservation of air transportation, reservation of seats for travel, air passenger travel and similar services and its trademarks are protected for services in classes 35, 39 and 42 of the Nice classification. The main website of the Complainant is www.kiwi.com. \r\n\r\nThe Complainant has registrations for the “KIWI.COM” marks referred to above and it also provided details of its company registration in the Czech Republic.\r\n\r\nThe Complainant claims that it uses the marks and names “kiwi” and “kiwi.com” in relation to products and services on the market related to such areas as IT and carriage services and such marks are known to relevant consumers.\r\n\r\nThe Complainant contends the disputed domain name is confusingly similar with the Complainant’s “KIWI.COM” trademarks with the addition of the postfix \"avia\" which does not change the overall perception of the disputed domain name. \r\n\r\nThe risk of confusion is exacerbated by the content of the website by the disputed domain name including use of the Complainant’s logo, a reference and link to Complainant’s own website www.kiwi.com and false claims of affiliation with the Complainant.\r\n\r\n\r\nTHE RESPONDENT HAS NO RIGHTS OR LEGITIMATE INTERESTS IN RESPECT OF THE DISPUTED DOMAIN NAME\r\n\r\nThe Complainant claims that the Respondent does not have any trademark rights or any other rights in respect of the disputed domain name or any business relationship with the Complainant. \r\n\r\nThe Respondent has purposefully selected the disputed domain name due to its confusing similarity with the Complainant’s marks and the Respondent does not provide any bona fide services under the disputed domain name.\r\n\r\n\r\nTHE DISPUTED DOMAIN NAME WAS REGISTERED AND BEING USED IN BAD FAITH\r\n\r\nThe Complainant alleges the disputed domain name has been registered and used for the purpose of imitating the Complainant and its website to create an online scam with the goal to achieve a financial profit. \r\n\r\nThe website by the disputed domain name has a similar design with the Complainant’s own website, contains the Complainant’s logo, Complainant’s company registration details and a link to Complainant’s own site. \r\n\r\nThe internet users can be easily confused by visiting the website by the disputed domain name and could provide their personal information to the Respondent. This can constitute fraudulent behaviour, which can result in a commercial gain of the Respondent.\r\n\r\nThe Complainant claims the disputed domain name was registered and being used in bad faith.",
    "other_legal_proceedings": "The Panel is not aware of any other legal proceedings which are pending or decided and which relate to the disputed domain name.",
    "no_response_filed": "NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.\r\n\r\n",
    "rights": "The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).",
    "no_rights_or_legitimate_interests": "The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy).",
    "bad_faith": "The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).",
    "procedural_factors": "The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.\r\n\r\n\r\nLanguage of the Proceeding\r\n\r\nThe Panel needs to address the issue of the language of this proceeding.\r\n\r\nAccording to the Registrar’s verification the language of the registration agreement is Russian.\r\n\r\n\r\nThe Complainant in its submissions has asked to proceed in English based on the following:\r\n\r\n- The Complainant cannot communicate in Russian and conducting the proceeding in Russian would increase its costs;\r\n\r\n- The Respondent can communicate in English as the website by the disputed domain name is in English; and \r\n\r\n- Conducting this proceeding in English is necessary to make the proceeding fair to both parties and not to disadvantage the Complainant. \r\n\r\n\r\nUnder par. 11 (a) of the UDRP Rules unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.\r\n\r\nThe Panel needs to provide the balance of interests of both parties to the proceeding and provide them with a fair opportunity to present their case and at the same time to ensure that the administrative proceeding takes place with due expedition. \r\n\r\nThe Panel notes that the website by the disputed domain name is in English. According to the Registrar’s verification response the Respondent is based in Spain and has no apparent connection to Russia.\r\n\r\nThe Respondent failed to respond and challenge the change of the language of the proceeding.\r\n\r\n\r\nAs noted in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement and such scenarios include inter alia: \r\n\r\n(i) evidence showing that the respondent can understand the language of the complaint, \r\n\r\n(ii) the language\/script of the domain name particularly where the same as that of the complainant’s mark, \r\n\r\n(iii) any content on the webpage under the disputed domain name, potential unfairness or unwarranted delay in ordering the complainant to translate the complaint and\r\n\r\n(iv) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement (see par. 4.5.1).\r\n\r\n\r\nThe Panel finds the circumstances above are present in this proceeding, namely the Respondent appears to understand English based on the content of the website by the disputed domain name. \r\n\r\nBoth script of the disputed domain name and content of the website by the disputed domain name (content is entirely in English) indicate that the Respondent understands English.\r\n\r\nThe fact that the Respondent is based in Spain, whereas the Complainant is from the Czech Republic makes English a proper and fair choice as the language of this proceeding. It is the language both parties can understand and use for communication.\r\n\r\nBased on the above the Panel agrees with the Complainant and decides to proceed in English.",
    "decision": "Accepted",
    "panelists": [
        "Igor Motsnyi \/ Mocni Konsalting doo"
    ],
    "date_of_panel_decision": "2022-07-23 00:00:00",
    "informal_english_translation": "In this proceeding the Complainant relies on the following trademarks:\r\n\r\n- The US trademark “KIWI.COM” (word) No. 5268315, registered on August 22, 2017;\r\n\r\n- The UK trademark “KIWI.COM” (figurative: word and device) No. UK00915321888, registered on September 1, 2016;\r\n\r\n- The EU trademark “KIWI.COM” (figurative: word and device) No. 15321888, registered on September 1, 2016;\r\n- The EU trademark “KIWI.COM” (word) No. 15218472, registered on August 4, 2016;\r\n\r\n- The Czech trademark “KIWI.COM” (word) No. 355177, registered on August 24, 2016;\r\n\r\n- The Czech trademark “KIWI.COM” (figurative: word and device) No. 355226, registered on August 24, 2016. ",
    "decision_domains": {
        "KIWI-AVIA.COM": "TRANSFERRED"
    },
    "panelist": null,
    "panellists_text": null
}