Our Rebuttal

Before the:

WORLD INTELLECTUAL PROPERTY ORGANIZATION

ARBITRATION AND MEDIATION CENTER

WIZZ Air Hungary Airlines

Limited Liability Company

Airport Business Park, Lőrinci út 59., H-2220 Vecsés, Hungary

(Complainant)
Case No: D2009-1105

-v-
Disputed Domain Name[s]:
XXXXXX XXXXXXX

(Respondent)

wizzairsucks.com

________________________________

RESPONSE

(Rules, para. 5(b))
I. Introduction

[1.] On August 24th 2009, the Respondent received a Notification of Complaint and Commencement of Administrative Proceeding from the WIPO Arbitration and Mediation Center (the Center) by email informing the Respondent that an administrative proceeding had been commenced by the Complainant in accordance with the Uniform Domain Name Dispute Resolution Policy (the Policy), approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), approved by ICANN on October 24, 1999, and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). The Center set September 13th, 2009 as the last day for the submission of a Response by the Respondent.

II. Respondent’s Contact Details

(Rules, para. 5(b)(ii) and (iii))

[2.] The Respondent’s contact details are:

Name: XXXXXX XXXXXXXX

Address: XXXXXXXXXX
Telephone: XXXXXX

Fax: N/A

E-mail: XXXXXX.XXXXXXX@gmail.com

[3.] The Respondent’s authorized representative in this administrative proceeding is:

Himself, XXXXXXX XXXXXXXX

[4.] The Respondent’s preferred method of communications directed to the Respondent in this administrative proceeding is:

Electronic-only material

Method: e-mail

Address: XXXXX.XXXXXXX@gmail.com

Contact: XXXXXXXX

Material including hardcopy

Method: N/A

Address: N/A

Fax: N/A

Contact: XXXXXXXXX

III. Response to Statements and Allegations Made in Complaint

(Policy, paras. 4(a), (b), (c); Rules, para. 5)

[5.] The Respondent hereby responds to the statements and allegations in the Complaint and respectfully requests the Administrative Panel to deny the remedies requested by the Complainant.

A. Whether the domain name[s] [is/are] identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(Policy, para. 4(a)(i))

* Wizzairsucks.com could not be “confusingly similar” to the Wizzair trademark. I have made no attempt at deception or in anyway pretended to represent myself as Wizzair. On the contrary, I believe that no consumer or customer would believe that Wizzair would sponsor a site critical of itself or actively support its customers claims of malfeasance. The “sucks” mantra is itself protected under free speech and similar sites exist for many other corporations and have been upheld as such.

* The complainant’s argument that “An Internet user may also think that the Complainant registered the disputed domain name for marketing purposes (in a self-derision strategy)” is absurd. The mention of it only illustrates the weakness of their claim. A brief glance is all it would take for even the most obtuse observer to realize it was a website meant to parody and criticize the character of the complainant’s business and could not in anyway be interpreted as, or supported by, Wizzair.
* While the complainant is correct in their assertion that the Center does usually support the complaint’s trade mark in cases of “confusing similarity,” it is not true in all cases nor did they explain the reasons behind those decisions. This is a gross over simplification and only superficially has anything to do with those cases or their deciding factors.
* The majority of cases arbitrated by the Center are won by the complainant in similar cases because in the bulk of these cases the respondents acquired those domains in bad faith. This is not the same as simply “confusing similarity” in regards to the trade mark as the complainant contends. A simple tally from the ICANN’s list of proceedings with the search result “sucks” will perfectly illustrate this point (http://www.icann.org/en/udrp/proceedings-list.htm). In almost all cases of domains fitting this criteria the respondents had no legitimate claim to the domains they owned and lost ownership on that basis. It was a causal effect between them, and not the deciding factor in any of these cases cited. They were squatters, keyword advertisers, etc, many of them being tried for 3-10 similar domain names with the same trade mark.
* Example: Case #WIPO D2000-0996 “guinness-beer-really-really-sucks.com, guinness-beer-really-sucks.com, guinness-beer-sucks.com, guinness-really-really-sucks.com, guinness-really-sucks.com, guinness-sucks.com, guinnessbeerreallyreallysucks.com, guinnessbeerreallysucks.com, guinnessbeersucks.com, guinnessreallyreallysucks.com, guinnessreallysucks.com
* The complainant’s claim to this end has little merit because almost all domains which are resolved through WIPO or UDRP arbitration are won or lost on the basis of bad faith and not from simply Trade Mark disputes.
* I argue that on the basis of Free Speech that Wizzairsucks.com is an effective parody for critical commentary and seriously undermines the requisite elements of trademark infringement, including the “element of a likelihood of confusion” (Annex p.1-19 Lucent Technologies, Inc. v. Lucentsucks.com )

B. Whether the Respondent has rights or legitimate interests in respect of the domain name[s];

(Policy, para. 4(a)(ii))

* To the complainant’s erroneous claim, “The Respondent is not using the domain name in connection with bona fide criticism;” I would respond by pointing out I have a multitude of criticisms (plural), whether or not they are bona fide is a matter of conjecture. I can only conclude from this claim that either the attorneys in question are clearly deficient in the english language or they didn’t bother to read it.
* Their further statement that “there is no evidence to support that the disputed domain name was registered for the purpose of a legitimate protest site” is similarly without base. I would be greatly surprised given the number of similar cases to this one that this law firm, which I suspect specializes in these types of cases, ever even looked at my website close enough to glean any of its content. It may be the first legitimate protest site they have seen (or would have had they examined it). (See Annex p. 72-89)
* However I agree with both them and the bulk of WIPO’s arbitrations, that the majority of cases are domain squatters only out to collect cash from advertising revenue and/or simply holding the domain ransom while fraudulently using another party’s lucrative trade mark. These are domain pirates for whom I have no respect.
* Their last assertion is the only one that is mostly true or as close to it as they will ever come. That “the Respondent makes references to the competitors of the Complainant by recommending the Internet users to use these airlines instead of the Complainant.” This is true, though I didn’t decide to support a particular airline over any other, including Wizzair arbitrarily. I held a poll on the site listing 5 well known budget airlines including Wizzair and asked my visitors which of the 5 airlines “sucked the most.” (See annex p.74) The poll received 177 votes over the course of a few months. Owing to the fairness of my poll and my own integrity, to my shock, Ryanair won as the “most hated airline in Europe.” However Wizzair was a narrow second, lacking only 4 votes. People tended to hate Skyeurope and Easy Jet the least… but saying that I “recommended” them would be a stretch. I only meant to imply that their competitors were less bad. It seems to go without saying, but I received no money or compensation from any of the other airlines in anyway.
* The claim that I “gain[] commercial revenue from the operation of the web site” is absolutely false. I have never made money from the operations of Wizzairsucks.com nor was it ever my intention. I have made $0.00 during the 5 months I have owned Wizzairsucks.com and it has cost me exactly $36.00. $7 for the domain itself and $29.00 for Godaddy sending me an email stating the advance of this inquiry (Annex p.90). I am not a company nor do I represent the interests of anyone outside myself, nor do I necessarily agree with all the comments from other customers posted on my own site. There are several comments in Wizzair’s favor which I oppose (Annex p.77-83).

* Similar legal cases to my own have been waged in the WIPO, US Federal Courts, and the National Arbitration Forum on the subject of [*trade-mark* - sucks.com]. These include: lucentsucks.com, ballysucks.com, wallmartcanadasucks.com, and michaelsavagesucks.com. These cases were decided in the respondents favor on the grounds that they were both legitimate acts of free speech and the domains were not confusingly similar to the complainant’s respective trade marks (Lucent Technologies, Bally Total Fitness, Walmart Stores, and Mr. Michael Savage). (* These can be found in Annex p. 1-19,20-37,38-42, & 43-58.)
* On the subject of Legitimacy a US court concluded “a showing that lucentsucks.com is effective parody and/or a [site] for critical commentary would seriously undermine the requisite elements” of trademark infringement, including the element of a likelihood of confusion.” Further more the same court concluded that “comment, criticism, [or] parody…may be an appropriate indication that the person’s registration or use of the domain name lack[s] “bad faith,”
* The most extreme argument came from within the WIPO in the last case of Wal-Mart Stores, Inc. v. wallmartcanadasucks.com and Kenneth J. Harvey. The analysis described the respondent as a past cybersquatter that “hardly appears with clean hands” and as acting unfairly and childishly but that “The UDRP has a narrow scope. It is meant to protect against trademark infringement, not to provide a general remedy for all misconduct involving domain names. Posting defamatory material on a Web site would not justify revocation of a domain name under the UDRP. Posting indecent material on a Web site would not justify domain name revocation under the UDRP. “
* Furthermore he claimed that UDRP Policy “should not be used to shut down robust debate and criticism. Allowing trademark owners to shut down sites that obviously are aimed at criticism of the trademark holder does just that.”
* In all four cases, the respondent had a similar argument and the respective courts/bodies found in favor of the respondent and that the registration should thus not be transferred or canceled.
* (Annex p. 1-19,20-37,38-42, & 43-58)
*

C. Whether the domain name[s] [has/have] been registered and [is/are] being used in bad faith.

(Policy, para. 4(a)(iii))

* In section 5C of the complaint under the dubious headline “Suspicious contact details” the complainant stated they sent a notice letter both to “the Respondent and the Respondent’s administrative contact.” This is simply not true.
* In this case the “Respondent” and “Administrative” contact are the same person, not a company as they claim and have the same address which is and always has been XXXXX.XXXXXXX@gmail.com for the domain in question (See complainant’s annex 2). I received NO email(s) or correspondence of any kind before these proceedings began. Additionally, before the formal complaint, neither Wizzair nor their lawyers have ever attempted to contact me in regards to my own personal letters (Annex p.59-63). I have sent dozens of emails over a period of 5 months to every address conceivable and all of which I have been rigorously documented on the Wizzairsucks site with applicable dates starting from several days after the domain’s registration, April 27th, 2009 (Annex p.59-63). I have never received correspondence from Wizzair until this proceeding officially began other than a few automated emails stating they would get back to me at a later date which they did not (Annex p.66-71). The first contact I ever received involving Wizzair was from my domain name registrar Godaddy on August 18th, 2009 (Annex p.90).

* My contact details are quite firmly elucidated on the website of Wizzairsucks. On the page: http://www.wizzairsucks.com/letters/ which is a menu link at the top of every page on the site. Additionally my email address is listed under domain registration in all roles as XXXXX.XXXXXXX@gmail.com which is correct and up to date. Had Wizzair or their legal team, given their advanced legal training, ever wished to contact me for any reason they would have had no problem. (*As substantiated by their own Annex 2)
* Indeed, the Raison d’être for Wizzairsucks is rooted in their lack of contact making their new attempt to cast aspersion both humorous and shameful. After being stranded along with my entire family first in Romania and then in Germany I wrote them a letter on April 8th 2009 and again on June 8th 2009 neither of which received any response and which prompted me to begin Wizzairsucks.com (See Annex 59-63). My intention is/was to create a website of direct criticism towards Wizzair and humorous dialog when they never respond to my mails. I further aimed to create a support group for fellow Wizzair customers with similarly unfortunate experiences which I believe has been accomplished. This is evident by visiting my website which includes scores of other contributors who are not in anyway related to myself other than being fellow disgruntled Wizzair customers (Annex p. 77-82).
* My motives have never been for financial gain despite Wizzair’s frivolous allegations and I invite Wizzair to prove otherwise.
* I have never attempted to solicit money from the sale of this domain name or any other, nor have I used advertising or keywords to generate revenue from wizzairsucks.com.
* I state again unequivocally that I have made absolutely no money from this website in any way and it was never my intention to do so. The t-shirt shop which is the only “evidence” the complainant has offered to this effect was born out of humor as evidenced by the text linking to the site stating “Enjoy such classics as *Friends don’t let friends fly Wizzair* & *Wizzair, We can strand you anywhere*.” This says more about their lack of humor or my poor taste than about my lack of entrepreneurship. I have never sold a t-shirt but would be pleasantly amused if I did but could not imagine the proceeds of such a sale covering even the modest $7 cost of the domain name. (http://wizzairsucks.spreadshirt.net/) The only beneficent of such a t-shirt would be plausibly spreadshirt.net and the buyer who would not only possess such a stylish garment but also be more desirable to the opposite sex upon wearing it (Annex p.64-65 & their Annex 5).
* I have a legitimate interest in the domain name Wizzairsucks.com and the legal right to express my opinions and personal experiences using it and to collect the experiences of others for the benefit or detriment of all.
* I have no ill intention to hurt Wizzair or their trademark. What I intend(ed) for Wizzairsucks is simply to highlight their fiendish fiendish ways in order for them to redress themselves and for my own personal amusement as well as the entertainment of other former passengers. My efforts have been to create a successful dialog between myself and their management and also to somehow extract an apology for my own personal fiasco and end our current menial credit card battle. All of which have thus far failed miserably.
* My sincere hope is that what happened to me personally, will never happen to anyone else (Annex p.59-60). Having run this website for 5 months and read more of their customer’s complaints than probably they themselves, I can say with candor that they are not and have not been responsible or accountable to any of their ordinary customers. This is the sole reason for the success of Wizzairsucks and has little to do with the domain itself, nor is it likely to be deflected so much as inflamed by the outcome of this arbitration and their present actions. (Unless of course they decide to listen as opposed to litigate).
* Aside from the negative experiences of their passengers, the second most common post on the forum of Wizzairsucks.com is a request for phone numbers and email addresses of Wizzair’s that work! (http://www.wizzairsucks.com/forum or Annex p. 77-78)

IV. Administrative Panel

(Rules, paras. 5(b)(iv) and (b)(v) and para. 6; Supplemental Rules, para. 7)

[6.] The Respondent elects to have the dispute decided by a single-member Administrative Panel lacking the required trust fund or excessive spending money for the illustrious three-member Administration Panel.

V. Other Legal Proceedings

(Rules, para. 5(b)(vi))

[ ] None

VI. Communications
(Rules, paras. 2(b), 5(b)(vii); Supplemental Rules, para. 3)

[7.] A copy of this Response has been sent or transmitted to the Complainant on August 26th, 2009 by email.

[8.] This Response is submitted to the Center in electronic form (except to the extent not available for annexes), and in four (4) sets together with the original.

VII. Payment

(Rules, para. 5(c); Supplemental Rules, Annex D)

[ ] None!

VIII. Certification
(Rules, para. 5(b)(viii), Supplemental Rules, para. 12)

[9.] The Respondent agrees that, except in respect of deliberate wrongdoing, an Administrative Panel, the World Intellectual Property Organization and the Center shall not be liable for any act or omission in connection with the administrative proceeding.

[10.] The Respondent certifies that the information contained in this Response is to the best of the Respondent’s knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under the Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.

Respectfully submitted,

___________________

XXXXX XXXXXXX

Date: August 24th, 2009