WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L., v. Hostal Torrejon Case No. D2008-1472 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, Germany.
The Respondent is Hostal Torrejon of Torrejon de Ardoz, Madrid, Spain, represented by Manuel De Arpe Fernández, Spain. 2. The Domain Name and Registrar
The disputed domain name is is registered with Tucows Inc. 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 Tucows Inc., a request for registrar verification in connection with the disputed domain name. On October 1, 2008, Tucows Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the 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 October 16, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 5, 2008. The Response was filed with the Center on November 4, 2008.
The Center appointed Hon. Sir Ian Barker as the sole panelist in this matter on November 12, 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 operates cruises in Europe, the United States of America, the Caribbean and Asia. It has an annual turnover of some €451 million in 2007. It is the owner of a registered German trademark for the word mark AIDA, registered in 1998. It also owns a registered EC trademark for the word mark AIDA registered in 2008.
The Respondent is the owner of a hotel in Torrejon de Ardoz near Madrid. It was established in 1992 and has been licensed as a hotel by the competent authorities in Spain. It is affiliated with the Best Western Spain hotels since 2006.
It registered the disputed domain name on April 18, 2002. On its website is found the name and logo of the Hotel Aida, pictures of the rooms, services and facilities of the hotel, special deals and offers and contact and price information. The Respondent's hotel features in various hotel guides. 5. Parties' Contentions A. Complainant
The disputed domain name is confusingly similar to the Complainant's registered marks. The part of the disputed domain name, “hotel”, is unimportant for the purposes of determining confusing similarity. The word “hotel” is solely descriptive of the services the Complainant offers under the name AIDA.
The Respondent has no rights or legitimate interests in the disputed domain name. It was not given any by the Complainant.
The disputed domain name was registered and is being used in bad faith. Services offered under the disputed domain name are, if not identical, at least closely similar to the services for which the Complainant has trademark protection, since hotel reservations are part of travel arrangements.
The Complainant offers hotel services in Spain in English and German to potential European customers. B. Respondent
The Respondent has been operating a hotel business near Madrid Airport under the name “Hotel Aida” since 1992. It has used the name AIDA since 2002 with no intention of disturbing the Complainant or attracting the Complainant's visitors to its website.
The Complainant and Respondent are not competitors because their activities (hotel operator and cruise line) satisfy different needs.
The disputed domain name was not registered by the Respondent primarily to disrupt the Complainant's business. The business activities of the Respondent in relation to the Hotel Aida were previous in time to when the Complainant filed its trademark application in Germany in 1997. A statement was provided from a website designer who confirmed that he had created the Respondent's website publicizing the hotel in 2002. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(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 is confusingly similar to the trademarks in which the Complainant has rights. The addition of the descriptive word “hotel” to the trademark does not alter the confusing similarity.
The Complainant has fulfilled the first criterion under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Under paragraph 4(c) of the Policy, any of the following circumstances (by way of example) might serve to demonstrate a respondent's rights to or legitimate interests in a domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to the Respondent of the dispute, use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain misleadingly to direct consumers or to tarnish the trademark or service mark at issue.
The Respondent has convincingly demonstrated that it has been operating a genuine hotel business under the name Hotel Aida since 1992, long before the Complainant registered its first trademark. The Respondent clearly falls within paragraph 4(c)(i) of the Policy in that it has been conducting a legitimate business before any notice of the dispute arose. A stronger case for the application of paragraph 4(c)(i) is hard for this Panel to imagine. C. Registered and Used in Bad Faith
Although the Panel's finding in favour of the Respondent in respect of the second criterion (Rights and Legitimate Interests) means that it is unnecessary to consider bad faith, it bears mention that there is no proof on the record (nor indeed even such a claim) that the disputed domain name was registered in bad faith.
The onus of proving this limb of the Policy is on the Complainant, which has offered only conclusory allegations as to the Respondent's alleged bad faith use of the disputed domain name. Notwithstanding the above, the Complaint fails as to this element of the Policy. 7. Decision
For all the foregoing reasons, the Complaint is denied.
Sir Ian Barker
Sole Panelist
Dated: November, 25 2008
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