The Complainant is AIDA Cruises - German Branch of Costa Crociere S.p.A. of Rostock, Germany, represented by Selting und Baldermann, Germany.
The Respondent is Hamdi Gocen of Istanbul, Turkey. 2. The Domain Names and Registrar
The disputed domain names and are registered with Reg2C.com Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 31, 2011. On October 31, 2011, the Center transmitted by email to Reg2C.com Inc. a request for registrar verification in connection with the disputed domain names. On November 1, 2011, Reg2C.com Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On November 3, 2011, the Center informed the Parties by email about the Language of Proceedings. On November 4 and 10, 2011, the Center received email communications from the Complainant concerning the Language of Proceedings.
The Center verified that 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 both in English and in Turkish, and the proceedings commenced on November 14, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was December 4, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 6, 2011.
The Center appointed Selma Ünlü as the sole panelist in this matter on January 4, 2012.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 facts stated in the Complaint are as follows:
(1) The Complainant is a cruise line company based in Germany.
(2) The Complainant is the owner of the German trademark AIDA numbered 39701328 and registered on March 17, 1998. The said trademark covers “[…] organisation of travel/vacations and transport, accommodation of guests […]” services.
(3) The Complainant is the owner of the Community trademark AIDA numbered 4681987 and dated October 12, 2005. The said trademark covers “travel arrangement and especially cruise” services as well. 5. Parties’ Contentions A. Complainant
The Complainant requests the Panel to issue a decision transferring the disputed domain names to the Complainant on the following grounds:
(i) The disputed domain names are identical or confusingly similar to a trademark or a service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) The disputed domain names are registered and is being used in bad faith (i) Identity or Confusingly Similarity
The Complainant alleges that the disputed domain names are identical to the AIDA trademark of the Complainant. Therefore, the Complainant refers to STX LLC v. Yu nae ho, Jinsu Kim, WIPO Case No. D2006-0567 and states that the top level domain suffixes such as “.net” and “.info” do not avoid confusion in the mind of the public.
Further, the Complainant argues that the term “tour” is a descriptive word for the travel services of the Complainant, the Complainant alleges that addition of such a descriptive word does not avoid confusion in the mind of the public. (ii) Rights or Legitimate Interests
The Complainant states that the Respondent has no rights or legitimate interests in respect of the disputed domain names since the Respondent does not have earlier rights for the AIDA trademark Moreover, the Respondent is not a licensee of the Complainant and does not have the Complainant’s authorisation to use the AIDA trademark.
The Complainant also alleges that the Respondent cannot be said to be using the disputed domain names in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the disputed domain names since the Respondent uses the disputed domain names commercially.
Moreover, the Complainant states that the Respondent is linking the disputed domain names to a Google search results which allows other travel agencies to present themselves and their offers as part of the search results.
Consequently, the Complainant refers to Rolex Watch U.S.A., Inc. v. Vadim Krivitsky,WIPO Case No. D2008-0396 by stating that “[f]or a commercial use it is not necessary to have an own commercial advantage from the use of the domain name. It is sufficient if a domain name owner supports the commercial interest of third persons.” (iii) Registered and Used in Bad Faith
The Complainant refers to Micro Electronics, Inc. v. J Lee, WIPO Case No. D2005-0170 and states that the Respondent uses the disputed domain names to indirectly market products of the Complainant’s competitors. Therefore, the Complainant alleges that several links of the Google search results directs to travel services which is an indication of bad faith.
The Complainant also argues that the Respondent is well aware of the Complainant’s AIDA mark, since the content of the website is addressed straight in regard of the Complainant and its business. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of the administrative proceeding
The Complaint was filed in English. The registrar confirmed that the language of the registration agreement for the disputed domain names is Turkish. Further to the Center’s email communication regarding the language of the proceedings, the Complainant requested that English be the language of the proceeding.
According to paragraph 11 of the Rules, the language of the administrative proceeding shall be the language of the registration agreement unless the Panel decides otherwise. Paragraph 11 of the Rules is to ensure fairness in the selection of the language of the proceeding by giving full consideration to the parties’ knowledge of the relevant languages, expenses to be incurred and a possible delay in the event translation of the Complaint is required, etc.
The Panel finds that, being a German entity, the Complainant is not in a position to conduct these proceedings in Turkish without a great deal of additional expense and delay in translating the Complaint and the Annexes. If the Complainant was to submit all documents in Turkish, the proceeding would be unduly delayed and the Complainant would have had substantial translation expenses.
Despite the Center notifying the Complaint both in Turkish and English, the Panel notes that no objection was made by the Respondent to the Complaint being in English nor any request made that the proceeding be conducted in Turkish, the language of the registration agreement. The Respondent had an ample opportunity to raise objections or make known its preference, but it did not. See: SWX Swiss Exchange v. SWX Financial LTD,WIPO Case No. D2008-0400.
Therefore, in consideration of the above circumstances and in accordance with paragraph 11 of the Rules, the Panel hereby decides that English shall be the language of the administrative proceeding in the present case. B. General
According to paragraph 15(a) of the Rules, the Panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove each of the following, namely that:
(i) The disputed domain names are identical or confusingly similar to a trademark in which the Complainant has rights: and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain names: and
(iii) The disputed domain names have been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant has the burden of proving that all of these requirements are fulfilled. C. Identical or Confusingly Similar
The test for identical or confusing similarity under the Policy, paragraph 4(a)(i) is limited in scope to a comparison between the Complainant’s trademark and the textual string which comprises the disputed domain names. In this case, the Complainant has demonstrated registered trademark rights in the mark AIDA. The disputed domain names consist of the term “aidatour”.
Based on the evidences submitted by the Complainant concerning the trademark registrations of AIDA, the Panel finds that the Complainant has successfully proven the earlier registered right in the “aida” term. The Complainant has registered AIDA trademark since 1998, well before the registration date of the disputed domain names by the Respondent.
The disputed domain names contain the “aidatour” term as a core element. Considering that the core element of the registered trademark is also the “aida” term, in this Panel’s view it is clear that the disputed domain names are confusingly similar to the Complainant’s trademark. Moreover, as it can be seen at the official website of the Complainant, the Panel finds that the Complainant’s use of the “aida” term has been continuously used for many years as a sole and core element in its business.
In similar cases, UDRP panels have found that neither the beginning of the URL (i.e. “www”), nor the generic top level domains (i.e. “info” and “net”) do not avoid a likelihood of confusion between a trademark and a domain name incorporating said trademark. See, The Forward Association, Inc., v. Enterprises Unlimited, NAF Claim No. FA95491. Therefore, the Panel is of the opinion that the generic top level domain suffixes “.net” and “.info” shall not be taken into account in the present case.
The Panel is also of the opinion that the word “tour” is a descriptive word for the travel services. As it is shown in the evidence, the Complainant is a cruise line company offering holiday cruises. Therefore, the Panel believes that addition of the word “tour” does not avoid a likelihood of confusion between the Complainant’s trademark and the disputed domain names. On this point, the Panel refers to Lucasfilm Ltd. and Lucas Licensing Ltd. v. Cupcake City and John Zuccarini,WIPO Case No. D2001-0700 where the panel stated that a user of a mark may not avoid a likelihood of confusion “by appropriating another's entire mark and adding descriptive or non-distinctive matter to it”.
Consequently, the Panel believes that such inference may be applied to the present case and there is no doubt that the disputed domain names are confusingly similar to the Complainants’ AIDA trademark and thus, the first requirement under paragraph 4(a) of the Policy is satisfied. D. Rights or Legitimate Interests
Paragraph 4(c) of the Policy states that, a respondent may establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) You [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The burden of proof is on the Complainant to demonstrate a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain names. Once the Complainant has made out a prima facie case, then the Respondent may, by, inter alia, showing one of the above elements, prove rights or legitimate interests in the disputed domain names.
In the light of the evidence submitted, it is clear to the Panel that the Complainant has earlier and legitimate rights in the AIDA mark. Therefore, the Panel finds that the Complainant established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain names for the purposes of the Policy. The Complainant has not granted the Respondent any right or license to use the AIDA marks.
The Panel notes that the Respondent has not provided evidence of any elements specified in paragraph 4(c) of the Policy or of any other circumstances giving rise to a right or legitimate interest in the disputed domain names
In this sense, based on evidence submitted by the Complainant, the Panel holds that the use of the AIDA mark has not been authorized or licensed to the Respondent and that the disputed domain names do not obviously correspond to the Respondent’s name or to a trade name by which it has become commonly known.
Hence, as the rights or legitimate interests of the Respondent have not been duly proven under paragraph 4(c) of the Policy, the Panel concludes that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. E. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four non-inclusive circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of the disputed domain names in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the disputed domain names primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain names; or
(ii) the Respondent has registered the disputed domain names in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the disputed domain names primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.
In the light of evidence submitted in the case file, the Panel is convinced that the Respondent has passively held the disputed domain names and is engaged in no activity. “Passive holding” has been accepted in certain circumstances as a sufficient bad faith indicator in a number of UDRP cases. As it is well reasoned in the case of Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003, “inaction […] can, in certain circumstances, constitute a domain name being used in bad faith.” Also, the panel refers to Compaq Computer Corporation v. Boris Beric,WIPO Case No. D2000-0042 and VEDA GmbH v. Mr. Nicholas Silverstone, WIPO Case No. D2002-1040. The Panel further notes that:
(i) the Respondent did not offer any counter-argument and remained in default,
(ii) the Respondent has not proven any good faith use of the disputed domain name; instead, this Panel finds that he has provided false contact details which may constitute a breach of the registration agreement as well.
In relation to the contact information of the Respondent, it seems to be false contact information since the mail delivery company could not deliver the post to the Respondent. Therefore, the Panel refers to Ticketmaster Corporation v. Dmitri Prem,WIPO Case No. D2000-1550 where the panel held that “[i]n the absence of explanation, the omission of significant information may be taken to amount to bad faith in securing a domain name registration.” Likewise, in various UDRP decisions, panels held that false contact information provided by the Respondent can constitute bad faith. See also Quixtar Investments, Inc. v. Scott A. Smithberger and QUIXTAR-IBO, WIPO Case No. D2000-0138.
Hence, the Panel is convinced that the disputed domain names have been registered and are being used in bad faith and that the Complainant has established the third element under paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names and be transferred to the Complainant.
Selma Ünlü
Sole Panelist
Dated: January 18, 2012
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