WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Pullmantur, S.A. v. Klaus W. Trachte Case No. D2009-0095 1. The Parties
The Complainant is Pullmantur, S.A. of Madrid, Spain, represented by Cuatrecasas Abogados, Spain.
The Respondent is Klaus W. Trachte of Hamburg, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with InterNetWire Communications GmbH. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 22, 2009. On January 23, 2009, the Center transmitted by email to InterNetWire Communications GmbH a request for registrar verification in connection with the disputed domain name. On January 28, 2009, after a reminder by the Center, InterNetWire Communications GmbH transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant, providing the contact details and stating that the language of the Registration Agreement is German. The Center sent a language of proceedings document to the parties on January 29, 2009. The Complainant filed a request that the language of proceedings be English on January 29, 2009. The Respondent did not submit any communications. The Center verified that the Complaint, together with the language request by the Complainant 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 February 9, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was March 1, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 5, 2009.
The Center appointed Tobias Zuberbühler as the sole panelist in this matter on March 16, 2009. 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 Spanish company specialized in the provision of tour-operator and cruising services.
The Complainant owns numerous trademark registrations based on the names “Pullmantur” and “Pullmantur Cruises”, among others the following: Community Trademarks (Classes 16, 38 and 39)
- Trademark No. 3669918 PULLMANTUR CRUISES, registered on February 18, 2004;
- Trademark No. 3677739 PULLMANTUR CRUISES, registered on February 18, 2004;
- Trademark No. 3669918 PULLMANTUR, registered on February 11, 2004. Spanish Trademarks
- Trademark No. 1168085 PULLMANTUR, registered on August 1, 1989 (Class 39);
- Trademark No. 2407166 PULLMANTUR CRUISES, registered on January 16, 2002 (Class 39);
- Trademark No. 2407167 PULLMANTUR CRUISES, registered on January 16, 2002 (Class 39);
- Trademark No. 2713572 PULLMANTUR CRUISES, registered on February 16, 2007 (Classes 16, 38 and 39).
The Complainant is also the registrant of a number of domain names based on the “PULLMANTUR” brand, including - among others - the following:
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The disputed domain name was registered on April 22, 2004. On the respective (German language) website, ship cruise trips of different operators (other than the Complainant) are offered. 5. Parties' Contentions A. Complainant
The Complainant objects to the use of the disputed domain name by the Respondent and bases its Complaint on the following grounds:
1 The domain name at issue is identical with the Complainant's trademarks. The use of a hyphen in the disputed domain name does not prevent such finding.
2 The Respondent makes no legitimate non-commercial or fair use of the domain name at issue. The Complainant has no relationship with the Respondent and has never authorized the Respondent to use the Complainant's marks as a domain name. The Respondent does not conduct any legitimate commercial or non-commercial business activity under the domain name.
3 The Respondent registered and uses the disputed domain name only to divert customers to its own website for commercial gain. Accordingly, the domain name was registered and is being used in bad faith.
The Complainant requests the Panel to issue a decision that the domain name be transferred to the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Language of the Proceedings
Despite the fact that the registration agreement for the disputed domain name was concluded in German, the Complainant filed a request to conduct the proceedings in English, based on the arguments that (i) the registrar's website allows the registration of “.com” domain names in English, (ii) the most appropriate and effective language for the proceedings should be English in the absence of a common language between the parties, and that (iii) the translation of the Complaint into German would involve additional costs and an unnecessary delay of the proceedings.
While the Complainant's arguments (i) and (ii) are not convincing in the panel's view, argument (iii)) regarding efficiency touches on one of the aspects to consider when determining the language of the administrative proceedings (cf. the Rules, paragraph 11). In the present case, it must be taken into account that no language request or Response has been submitted in either German or English. Since the Respondent was notified by the Center in both English and German about all procedural matters, the Center could have been addressed if the Respondent had felt the need to request a German version of the Complaint.
In light of the present record, the Panel decides not to request a German translation of the Complaint and to conduct these proceedings (and write this decision) in English. B. Identical or Confusingly Similar
Except for the hyphen and “.com” suffix, the disputed domain name is identical to the Complainant's trademarks; the Complainant has thus fulfilled paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests
The website connected with the disputed domain name offers a wide range of cruises operated by different companies such as MSC Crociere SpA, Norwegian Cruise Line, Delphin Kreuzfahrten GmbH or Costa Crociere S.p.A., all of them apparently competitors of the Complainant. Moreover, the Complainant contends that no relationship between itself and the Respondent exists beyond the mere possibility to purchase the Complainant's cruise packages at the Respondent's website.
Under these circumstances and in light of the present record, there are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the domain name at issue.
The Complainant, having made a prima facie case which remains unrebutted, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
Since the Respondent appears to be active in the leisure and recreation market, specifically cruises, it seems apparent that the Respondent was aware of the existence of the Complainant's trademarks as well as of the fact that he was not authorized to use such trademarks in order to register and use the disputed domain name.
Moreover, the disputed domain name is obviously being used as a commercial platform for the benefit of the Respondent's business, in order to attract Internet users to the Respondent's website. The Panel also refers to the use of the disputed domain name as explained above under the second limb of the Policy.
Under the circumstances, the Panel finds that the Respondent's conduct constitutes bad faith registration and use, thus fulfilling paragraph 4(a)(iii) of the Policy. 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.
Tobias Zuberbühler
Sole Panelist
Dated: March 30, 2009
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