DISSENT

I respectfully dissent from the decision of the majority of the Panel.

In my opinion, the disputed domain name <airfrancesucks.com> is not confusingly similar to Complainant’s AIR FRANCE mark. The domain name and mark do not look or sound alike and certainly do not convey the same commercial impression. See, e.g., FMR Corp. v. Native American WarriorSociety, Lamar Sneed, WIPO Case No. D2004-0978 (<fidelity-brokerageinvestmentsfraud.com> and <fidelityinvestmenttheft.com> not confusingly similar to FIDELITY and FIDELITY INVESTMENTS marks); Wal-Mart Stores, Inc .v. walmartcanadasucks.com and Kenneth J. Harvey, WIPO Case No. D2000-1104. In this regard, there is a big difference between the domain name <airfrancesucks.com> and <airfrancetickets.com>. While both incorporate Complainant’s mark in its entirety, the term “tickets,” in context, is generic in nature and, thus, insufficient to distinguish between the domain name and the mark. The term “sucks,” on the other hand, is clearly pejorative in nature and, thus, at least in my view, sufficient to avoid a determination of confusing similarity. To paraphrase the decision of one U.S. court, no reasonably prudent internet user would believe that <airfrancesucks.com> is the official Air France site or is sponsored by Air France. See Bally Total Fitness Holding Corp. v. Faber, 29 F.Supp.2d 1161 (C.D. Calif. 1998) (<ballysucks.com> not confusingly similar to BALLY mark).

While the majority notes that not all international customers are familiar with the pejorative nature of the term “sucks,” it is likely that a substantial percentage of potential customers of Air France are familiar with the English language and, thus, would be aware of the pejorative nature of “sucks.”

Finally on this issue, I note that a recent UDRP panel held that “[t]hough there are some decisions to the contrary, the weight of authority, and the clear trend of recent cases, firmly support the position [that adding a pejorative term to a trademark or service mark dispels the likelihood of confusion].” See, FMR Corp. v. Native American Warrior Society, supra.

Jeffrey M. Samuels
Panelist

Dated: May 24, 2005