The Complainant is AIDA Cruises - German Branch of Costa Crociere S.p.A. of Rostock, Germany, represented by Selting+Baldermann, Germany.
The Respondent is Nurinet of Kyongbuk, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with N. Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 3, 2012. On September 4, 2012, the Center transmitted to the Registrar a request for registrar verification in connection with the disputed domain name. On September 5, 2012, the Registrar transmitted to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On September 12, 2012, the Center notified the Parties - in both English and Korean - that the Complaint was filed in English but that according to the information received from the Registrar, the language of the Registration Agreement is Korean. Accordingly, on September 17, 2012, the Complainant submitted a request for English to be the language of the proceeding. The Respondent did not submit any reply. In the Center’s September 12, 2012 message to the Parties, the Center had informed the Respondent that “if we do not hear from you [timely], we will proceed on the basis that you have no objection to the Complainant’s request that English be the language of the proceeding[].”
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 in both Korean and English, and the proceedings commenced on September 24, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 14, 2012. The Respondent did not submit any response. Accordingly, the Center notified, in both English and Korean, the Respondent’s default on October 15, 2012.
In addition, on September 24, 2012, the Center: contacted the Registrar; notified that the disputed domain name was set to expire on October 26, 2012; referred to the ICANN Expired Domain Deletion Policy, which provides that in the event that the disputed domain name expires in the course of the dispute, the Complainant has the option to renew or restore the disputed domain name under the same commercial terms of the registrant; and requested confirmation that the disputed domain name will be placed in Registrar lock status and remain in such status after the expiration date until the UDRP proceeding is concluded, and whether any action is required by the parties to keep the domain name under Registrar lock. Receiving no response from the Registrar, the Center re-sent its previous message on October 4, 2012, and again on October 15, 2012. The October 15, 2012 email was copied to the parties. On October 18, 2012, the Center notified the parties (with a copy to the Registrar) that the Center did not receive from the Registrar a response to its emails of September 24, October 4, and October 15, 2012, and further advised:
“Accordingly, certain action including payment of a renewal /registration fee may need to be taken by one of the parties to this dispute to ensure that the domain name remains active (i.e. not expired) so that the administrative procedure can continue as required under the UDRP.
If you have not already done so, we strongly urge you to contact the Registrar directly as soon as possible in relation to resolving this issue. . . .
We ask one of the parties to please confirm to the Center as soon as possible (copying the Registrar) once the necessary arrangements have been made with the Registrar to ensure the domain name remains active.
We also ask the Registrar (copying the parties) to then please confirm to the Center that this has occurred, that the domain name remains active, that it has been locked and that it will remain so pending the outcome of the current proceedings.”
On October 18, 2012, the Complainant contacted the Registrar, with copy to the Center, requesting that the Registrar provide the necessary steps for renewal of the disputed domain name and the amount of costs to be paid for this purpose. On October 19, 2012, the Registrar notified the Center and the Complainant, copying the Respondent: “We have managed to lock status your domain. It will be paid extension fee by the dispute applicant.”
The Center appointed Professor Ilhyung Lee as the sole panelist in this matter on November 1, 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.
As explained herein, English is the language of this proceeding. 4. Factual Background
The Complainant, based in Germany, operates cruise lines in Europe, the United States of America, the Caribbean and Asia. It registered the trademark AIDA in Germany on March 17, 1998, for (in English translation) “Motor vehicles; equipment for transportation on land, water and in the air . . .”, and in the European Union on January 24, 2008.
The Respondent registered the disputed domain name on October 26, 2011. 5. Parties’ Contentions A. Complainant
The Complainant contends that: (i) the disputed domain name is identical or confusingly similar to the mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. Paragraphs 5(e) and 14(a) of the Rules permit the Panel to decide the dispute based on the Complaint. Under paragraph 14(b), the Panel may also draw appropriate inferences from the Respondent’s default. 6. Discussion and Findings
Initially, the Panel must address the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the administrative proceeding shall be the language of the Registration Agreement, unless otherwise agreed by the parties. Here, as confirmed by the Registrar, the language of the Registration Agreement is Korean. Importantly, paragraph 11(a) also states that the determination of the language of the proceeding is “subject to the authority of the Panel . . ., having regard to the circumstances of the administrative proceeding”. The Complainant requests that English be the language of the proceeding (and the Respondent did not submit any objections). The Panel agrees with the Complainant’s request.
After receiving the Complaint submitted in English, the Center notified the parties, in both Korean and English, of the Center’s procedural rules regarding the language of the proceeding. The Center informed that the Respondent may object timely to proceeding in English. The Respondent did not respond to the Center’s notification, and then defaulted. Under the circumstances, with only the Complainant remaining, and the Respondent declining to take part, the Panel determines that English will be the language of the proceeding. A. Identical or Confusingly Similar
The Complainant has demonstrated that it has rights in the mark AIDA. The disputed domain name incorporates the mark in full, and adds “-urlaub”, followed by the generic Top-Level Domain (“gTLD”) suffix “.com”, resulting in . The AIDA mark is the predominant portion of the disputed domain name; “urlaub” is a German term meaning “vacation” or “holiday,” both generic terms. The Panel determines that the disputed domain name is confusingly similar to the Complainant’s mark AIDA. The mere attachment of a generic term to a protected mark does not defeat confusing similarity.
The first element is established. B. Rights or Legitimate Interests
The Complainant has met its initial burden of making a prima facie case that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. Thus, the burden shifts to the Respondent to demonstrate any such rights or legitimate interests. The Respondent has defaulted. The Panel is unable to ascertain any evidence that would demonstrate the Respondent’s rights or legitimate interests in the disputed domain name, as described in paragraph 4(c) of the Policy, or otherwise.
The second element is demonstrated. C. Registered and Used in Bad Faith
In order to prevail, the Complainant must also show that the disputed domain name “has been registered and is being used in bad faith.” Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that are evidence of such bad faith.
In the present case, at the time of the Complaint, Internet users who resorted to the disputed domain name were taken to a website with the following content:
“LINECOM Trading Co., Ltd’s Internet Team
This Domain is for Sale
&
Under Construction Page
We are looking for investors in developing our new WebSite
This website is under construction now.
However, you can buy the domain showing this webpage if your price is ok.
Please send us your offer to . . . .”
The above was followed by Korean text indicating much of the same.
The website here is akin to a passive holding of the disputed domain name, but with an open solicitation to sell it.
The Panel concludes that the Respondent knowingly selected the Complainant’s mark AIDA - which is used for the Complainant’s cruise line operations - and attached to it the generic German term for “holiday” or “vacation”. The Panel finds it difficult to entertain the possibility that the Respondent registered the particular domain name by coincidence or happenstance. Moreover, the Panel is unable to conclude that the Respondent is using the disputed domain name for a bona fide purpose, indeed, for any purpose other than to sell the disputed domain name to the Complainant or its agent, for a price. The website explicitly solicits purchase of the disputed domain name; the Panel doubts that the Respondent intended to sell the disputed domain name merely for “out-of-pocket costs directly related to the domain name.” In all events, the Respondent had the opportunity to rebut these conclusions, but by defaulting, declined to do so.
In the Panel’s view, consideration of the full circumstances indicates the Respondent’s bad faith.
The third requisite element under paragraph 4(a) of the Policy is demonstrated. 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 name be transferred to the Complainant.
Ilhyung Lee
Sole Panelist
Dated: November 15, 2012
Full & Egal Universal Law Academy