WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L. v. ATP Events, Jose Mendoza Case No. D2008-1469 1. The Parties
The Complainant is AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L, of Rostock, Germany, represented by Selting und Baldermann, of Germany.
The Respondent is ATP Events, Jose Mendoza, of Los Angeles, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with 1&1 Internet AG. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 29, 2008. On September 30, 2008, the Center transmitted by email to 1&1 Internet AG a request for registrar verification in connection with the disputed domain name. On October 1, 2008, 1&1 Internet AG transmitted by email to the Center its verification response , disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 14, 2008, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on October 17, 2008. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 November 4, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 24, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 25, 2008.
The Center appointed Linda Chang as the sole panelist in this matter on December 15, 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. 4. Factual Background
The Complainant is a cruise line, based in Rostock, Germany, and has been operating in the travel-on -cruiser services in Europe, United States of America, the Caribbean, and Asia. It is also the registered owner of the German trade mark AIDA under the number of 397 01 328, which was applied for in early 1997. The registration covers the services of “travel arrangements, transport; accommodation of guest”.
The Respondent is ATP Events, Jose Mendoza which registered and is still holding the domain name of . 5. Parties' Contentions A. Complainant Identical or Confusingly Similar
The Complainant contends that the disputed domain is identical with the Complainant's trade mark AIDA and that the suffix “.net” and the prefix “www.” in the disputed domain are merely required features of each internet domain name that should not factor into the Panel's analysis. The Complainant further states that the other part of the disputed domain “travel” is solely a descriptive term for services related to travel, an industry in which the Complainant has been operating under the trade mark AIDA. Rights or Legitimate Interests
The Complainant further contends that the Respondent does not have rights or legitimate interests in respect of the disputed domain name. The Complainant states that a legitimate interest would require the Respondent to use the disputed domain name in a noncommercial or a bona fide manner. The Complainant further states that the Respondent has not independently obtained a right to use the name AIDA nor has he obtained any license or permission to use the same from the Complainant. Registered and Used in Bad Faith
The Complainant finally contends that previous UDRP decisions have ruled that use of a domain name which is similar to another party's trade mark on competing goods constitutes bad faith (Micro Electronics, Inc. v. J Lee,WIPO Case No. D2005-0170). The Complainant states that this type of use disrupts the business of the Complainant and therefore is evidence of bad faith.
The Complainant further states that the Respondent completely include the Complainant's trade mark in the disputed domain name by only adding a dictionary word “travel” to the disputed domain name. The Complainant points out that the Respondent also offers on the website cruises to Europe, where the Complainant holds older rights, and in addition, the registrar of the domain name is a German firm and therefore should know about the right situation in favor of the Complainant in Germany and Europe when registering the domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
The Complaint must satisfy each of the following three requirements as provided under paragraph 4/a) of the Policy for the order sought by the Complainant to be granted by the Panel in this administrative proceeding:
(i) the disputed domain name is identical or confusingly similar to the trade mark in which the Complainant has rights; and
(ii) the 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. A. Identical or Confusingly Similar
The disputed domain name completely incorporates the Complainant's trade mark AIDA which is registered in Germany under number 397 01 328. With regard to the other parts of the domain name, “.net” is the generic TLD indicator while “travel” is a solely descriptive term in the travel related industry. The mere addition of these terms to the term “aida” does not sufficiently differentiate the disputed domain name from the trade mark AIDA.
The Panel therefore finds that the disputed domain name is confusingly similar to the trade mark AIDA in which the Complainant has rights, and that the Complaint satisfies paragraph 4(a)(i). B. Rights or Legitimate Interests
The Complainant has established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. It is the view of UDRP panelists that once the complainant has established a prima facie case, it is the respondent's responsibility to prove otherwise.
The Respondent has not been able to prove any of the circumstances provided in paragraph 4(c) of the Policy, and the record does not contain any other plausible indication that the Respondent has rights or legitimate interests in the disputed domain name.
In the circumstances, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name. The Complaint satisfies the requirement of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b)(iv) provides the following situation, amongst others, as evidence of the respondent's registration and use of the domain name in bad faith:
By using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
Information on the record indicates that the disputed domain name is linked to a web page at “”. This is a travel service related web site, which seems to be posted for commercial gain. Travel agency services is the business of the Complainant. Given the similarity between the disputed domain name and the trade mark name, it is not unreasonable to believe that the Respondent registered and used the disputed domain name as a bad faith attempt to attract Internet users, for commercial gain, to its own web site or other online locations, by creating a likelihood of confusion between the Complainant and the Respondent. As a result of this attempt, the Complainant may suffer damage from losing Internet customers, and this falls directly under Paragraph 4(b)(iv) regarding the Respondent's bad faith in registering and using a domain name.
The Panel finds that the Complaint satisfies paragraph 4(a)(iii). 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 the Complainant.
Linda Chang
Sole Panelist
Dated: December 30, 2008
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