WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION AIDA Cruises German Branch of Società di Crociere Mercurio S.r.l. v. Belize Domain WHOIS Service Lt Case No. D2008-0109 1. The Parties
Complainant is AIDA Cruises German Branch of Società di Crociere Mercurio S.r.l., Rostock, of Germany, represented by Selting und Baldermann, of Germany.
Respondent is Belize Domain WHOIS Service Lt, Belmopan, of Belize. 2. The Domain Name and Registrar
The disputed domain name (“Domain Name”) is registered with Intercosmos Media Group d/b/a directNIC.com (“Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 24, 2008. On January 28, 2008, the Center transmitted by email to Registrar a request for registrar verification in connection with the Domain Name. On January 28, 2008, Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Registrar also confirmed that the Domain Name would remain registrar locked during the administrative proceeding. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed several amendments to the Complaint which was submitted in final form on February 5, 2008. The Center verified that the Amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 6, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was February 26, 2008. Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 27, 2008.
The Center appointed James H. Grossman as the sole panelist in this matter on March 7, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Panel asked for and received assistance from the Center with regard to Annex 8 of the Complaint in that the website underlying the Domain Name is in the German language. Since, as set forth below, Annex 8 is quite important in the decision of the Panel, the Panel determined that it must be certain of the wording on the website. The Panel is quite confident in the accuracy of the translations it received with regard to Annex 8. 4. Factual Background
Complainant states that it is a cruise line, based in Rostock, Germany and one of Germany's market leaders with an annual turnover of 408 million euros in 2006. Complainant operates cruises in Europe, the United States of America, the Caribbean, and Asia and is owner of the German Trademark 397 01 328 “aida” as registered for “travel arrangements, transport; accommodation of guest”. This trademark registration was applied for on January 15, 1997, many years before the Domain Name was registered in February 2005. Further, Complainant holds the rights to the registered European Community Trademark 468 19 87 AIDA protected within others for “travel arrangements, including cruises and trips.”
Complainant has taken reasonable steps to protect the name “aida” through its trademark registrations. The Panel also has visited Complainant's sites devoted to the Aida Cruise lines which are quite detailed and explain all of the various aspects of Complainant's travel services, cruise ships, and their capabilities and cruise offerings. 5. Parties' Contentions A. Complainant
According to Complainant, Respondent's use of the Domain Name, as it has been used, directly competes with Complainant and is confusingly similar to Complainant's trademark AIDA as used in the cruise and travel business. Complainant explains that the use of the term “kreuzfahrt” which in German means “cruise” is solely descriptive and when used with Complainant's trademark AIDA should bring users to the travel service and cruise descriptions of Complainant on the Internet rather than Respondent's website.
Further, Respondent is using the Domain Name for commercial purposes and has no rights or legitimate interests in so doing. Complainant points out that the services referred to on Respondent's site are not directly available from the site itself, but only through use of sponsored links (advertisements describing an advertiser's products and services on another website) which has been held not to be a legitimate interest in a domain name. Drake Bliss v. Cyberline Enterprises, WIPO Case No. D2001-0718. Additionally, Respondent, according to Complainant, uses hyperlinks under the Domain Name to link the consumer looking for Complainant's services to competitors of Complainant. Finally, Complainant states that besides the sponsored links, Respondent does not offer any other services or goods on the website.
Complainant asserts that another WIPO panel has held that a domain name which is similar to a trademark and used to indirectly market products of competitors on the Domain Name in question constitutes an improper use. Micro Electronics, Inc. v. J Lee, WIPO Case No. D2005-0170. Further, this type of use disrupts the business of Complainant and is therefore evidence of bad faith. Microsoft Corporation v. Gioacchino Zerbo, WIPO Case No. D2005-0644. Complainant states its trademark gives it protection for, inter alia, travel arrangements relating to “aida”. B. Respondent
Respondent did not reply to Complainant's contentions. The Center did provide evidence to the Panel that the Complaint was delivered to Respondent. 6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy, Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith.
Further, the Panel also notes that notwithstanding whether or not Respondent did file a Response, Respondent's default does not automatically result in a decision in favor of Complainant. Complainant must still prove each of the three elements required by paragraph 4 (a) of the Policy. The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064.
The Panel carefully studied Respondent's website as provided in Annex 8 by Complainant in order to determine whether the text could be helpful in the decision making process. This text was provided by Complainant. First, it is clearly all in the German language directed obviously to the German marketplace. Many of the listed opportunities begin with the word “Aida” usually in bold print with a clear message that the hyperlink to which you may go has special offers, know-how, price guarantees, daily specials all related to “Aida” cruise lines. The website then moves on to list a cruise agency offering cruise lines other than Aida, including many leading cruise companies offering 750 different ships and 10,000 different trips with pictures of many leading cruise lines and their ships. A. Identical or Confusingly Similar
The disputed Domain Name incorporates the Complainant's AIDA trademark in its entirety, in combination with the German word “kreuzfahrt”, which in English means “cruise”. It has been well-established by previous panels that the test for identity or confusing similarity under the first element of the Policy is a direct comparison between the disputed Domain Name and the trademark at issue. It has also been widely recognized that the addition of a generic or descriptive term to a mark in a domain name will not generally suffice to avoid a finding of confusing similarity with that mark. The gTLD (in this case “.com”) is a technical requirement for domain name registration and operation, and may be disregarded for the purpose of this comparison. On this basis, the Panel finds that the Domain Name is confusingly similar to the trademark in which Complainant has rights. Complainant has met its obligations of proof of the first element in this case B. Rights or Legitimate Interests
Annex 8 to the Complaint demonstrates that in fact Respondent has filled the text of the website with cruise and travel related business, despite Complainant's trademarks relating to the use of the Aida name together with travel and cruise business. Complainant's Complaint is quite clear that no license exists or permission was granted to Respondent to use the AIDA trademarks or Domain Name from Complainant. Had Respondent simply registered a generic domain name including the word “kreuzfahrt”, but omitting any reference to AIDA, Complainant would have had less of an argument in this regard. However, that is not the case here. As set forth above in Complainant's Contentions, Complainant has set forth a WIPO decision to the effect that the providing of only sponsored links by Respondent fails the test of being a legitimate interest in the Domain Name. Respondent also provides hyperlinks on the Domain Name website linking consumers to websites of travel agencies offering cruises of competitors of Complainant. This offering of business of others than Complainant together with this commercial offering of travel services is sufficient for Complainant to have fulfilled the second element of this case. C. Registered and Used in Bad Faith
The question of whether the Domain Name was registered and used in bad faith is often a more difficult element to satisfy. In this case, however, there is little question that the text of the website at the disputed Domain Name, as evidenced by Annex 8 to the Complaint, is filled with cruise and travel information with a strong focus at the top of the site on Aida Cruise Lines and then also to Aida's competitors. Complainant has also cited several WIPO decisions set forth above in Complainant's Contentions relating to the use of a domain name similar to a trademark (as in this case) used to indirectly market products of competitors on the related website. These WIPO decisions state that such actions constitute an improper use and such use disrupts the business of Complainant and therefore is evidence of bad faith. Micro Electronics, Inc. v. J Lee, WIPO Case No. D2005-0170 and Microsoft Corporation v. Gioacchino Zerbo, WIPO Case No. D2005-0644.
The bad faith is further demonstrated by a picture and certain offerings on the right side of the website relating to the opera Aida. There are hyperlinks to the opera but this is simply “window dressing” by Respondent in that all the serious business of the website relates to Complainant's business.
In sum, the Respondent has registered a Domain Name which combines the Complainant's AIDA mark with a term apt to describe a particular sort of travel services offered by of the Complainant, suggesting both knowledge of the Complainant's business and mark and awareness of probable confusion therewith, and has used that Domain Name for a webpage including various links to Complainant's competitors, from which revenue is presumably derived. Furthermore, the website at the disputed Domain Name is likely to reach right into the business of Complainant, and a reasonable user may well think he or she is on a website endorsed by the Aida Cruise Line, which is not in fact the case.
The Panel finds that the third element of bad faith has been satisfied by Complainant. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to Complainant.
James H. Grossman
Sole Panelist
Dated: March 21, 2008
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