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Derogatory Domain Name Dispute

Complainant, an airline operating under the AIR AUSTRAL trademark, filed Complaint against Respondent for its registration of the domain name "airaustralsucks.com".  Respondent operates, among other things, a website at "www.suetheairlines.com" on which consumers are encouraged to take legal action against airlines with whom they are in dispute. The disputed domain name was registered on June 19, 2008, the same day that Respondent registered several other domain names comprised of the trademarks of other airline companies with the suffix "-sucks".  At the time of the Complaint's filing, the disputed domain name was "parked" and contained click-through links to other sites, including travel related sites.

The Panel noted that the situation in relation to cases containing derogatory suffixes such as "sucks" is contentious.  The panel majority holds that a domain name consisting of a trademark and a negative term is confusingly similar to the complainant's mark. 

In considering whether Respondent had rights or legitimate interests in the disputed domain, the Panel interestingly noted that one potentially relevant fact in this case was the existence of Respondent's cybergriping site under a different domain name "suetheairlines.com".  Even though that domain name was not under dispute in this case, the Panel took into consideration that it was used by Respondent to post a website on information about various means by which airlines (in general) could be sued.  Use of a domain name that contains a complainant's mark to identify a genuine cybergriping site about that complainant can give rise to a legitimate interest in that domain name "or an important vehicle of online critique and discussion may be silenced."  In the Panel's view, the purchase of the disputed domain name for the purpose of operating a genuine cybergriping site would have been a more plausible claim if the domain was in fact being used for a gripe site about the Complainant and the Panel would have had little hesitation in finding for the Respondent. However, the disputed domain name was not being used for that purpose.  Instead, Respondent had left it parked as a click-through revenue generator, making its claim of legitimacy highly suspect.  In making the decision to transfer the disputed domain name to Complainant, the Panel further took into consideration the fact that whether such revenue generating links may be automatically generated by a parking service does not excuse such use.  As observed by numerous panels, a respondent is ultimately responsible for the content of a website generated by such technology.  Air Austral v. Tian Yi Tong Investment Ltd., WIPO Case No. D2009-0020


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