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 Andrey Sukharkov of Vladivostok, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with A LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 25, 2012. On September 25, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 3, 2012, the Registrar 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” 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 October 4, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 24, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 26, 2012.
The Center appointed Assen Alexiev as the sole panelist in this matter on November 5, 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.
On November 20, 2012, the Panel issued its Procedural Order No.1, by which it noted that the Complainant claimed to be the owner of the International Trademark AIDA No. IR 872,409, but it did not appear to be the same entity as the registered holder of the same trademark, namely Aida Cruises - German Branch of Società di Crociere Mercurio S.r.l., and invited the Complainant to submit appropriate evidence or explanation supporting its claim that it is the registered owner of said trademark. On November 23, 2012, the Complainant provided information and evidence that it is the same entity as the registered holder of the trademark, because on July 7, 2010, it changed its corporate name from AIDA Cruises - German Branch of Societa di Crociere Mercurio S.r.l. to AIDA Cruises - German Branch of Costa Crociere S.p.A. 4. Factual Background
The Complainant is one of the largest cruise lines in Germany. It operates cruises in Europe, the United States of America, the Caribbean and Asia.
The Complainant is the owner of the International trademark AIDA with registration No. IR 872,409, registered on October 11, 2005 for the territories of twelve countries, including the Russian Federation, for goods and services in International classes 03, 12, 16, 18, 24, 25, 28, 30, 32, 33, 39, 41, 43 and 44 (the “AIDA trademark”).
The disputed domain name was registered on July 16, 2011. 5. Parties’ Contentions A. Complainant
The Complainant submits that the disputed domain name is identical to the AIDA trademark. The “hotels” element of the disputed domain name is descriptive of travel services, which are among the services for which the AIDA trademark is registered.
According to the Complainant, the Respondent has no rights and legitimate interests in the disputed domain name. The Respondent has not obtained a right to use the AIDA trademark, and has not been licensed or permitted to use it by the Complainant, but has used the disputed domain name for commercial purposes by placing information and links to several hotels on the website associated to the disputed domain name.
The Complainant contends that the disputed domain name has been registered and used in bad faith. The Respondent has used the disputed domain name to market products of competitors of the Complainant and has thus disrupted the business of the Complainant.
The Complainant has submitted evidence about email communications between the Respondent and the Complainant’s lawyers, in which the parties have unsuccessfully attempted to reach an agreement for the transfer of the disputed domain name to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain names:
(i) that the disputed domain name are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the Respondent has registered and is using the disputed domain name in bad faith.
By Rules, paragraph 5(b)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present his case. The Respondent has chosen not to submit a Response. This conduct of the Respondent leads the Panel to conclude that he has no arguments or evidence to rebut the assertions of the Complainant. The Panel has to take his decision on the basis of the statements and documents before it and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar
The Complainant has provided evidence and has thus established its rights in the AIDA trademark, registered for the territories of various countries around the world, including the Russian Federation.
It is a common practice under the Policy to disregard the generic top-level domain (gTLD) such as the “.com” for the purposes of the comparison under the Policy, paragraph 4(a)(i). Therefore, the relevant part of the disputed domain name is its “aidahotels” section. The element “aida” is identical to the Complainant’s trademark, and it is likely that Internet users would regard the “hotels” element as a supplementary element and an indication of the business to which the disputed domain name refers. Therefore, the attention of an average Internet user would be mainly attracted by the dominating “aida” element of the disputed domain name.
For these reasons, the Panel finds that the disputed domain name is confusingly similar to the AIDA trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Complainant claims that the Respondent has no rights or legitimate interests in the disputed domain name, and provides certain arguments in this regard. Thus, the Complainant establishes a prima facie case under Policy, paragraph 4(a)(ii).
It is well established that once a complainant makes out a prima facie case that the respondent has no rights or legitimate interests in a domain name, the burden shifts to the respondent to rebut the showing by providing evidence to the contrary.
In the present case, the Respondent has chosen not to present to the Panel any allegations or documents in his defense despite the burden under the Rules, paragraph 5(b)(i) and 5(b)(ix), or the consequences that a panel may extract from the fact of a default (Rules, paragraph 14). If the Respondent had any justification for registering or using the disputed domain name, he could have provided it. In particular, the Respondent has not contended that any of the circumstances described in Policy, paragraph 4(c) - or any other circumstance - is present in his favor.
The only information available about the Respondent is the publicly available WhoIs information, provided by the Registrar, the content of the communication exchanges between the Complainant’s lawyers and the Respondent, and the content of the website, associated to the disputed domain name. The WhoIs information does not contain any evidence of rights or legitimate interests of the Respondent in respect of the disputed domain name.
In his email messages to the Complainant’s lawyers, the Respondent explained that the disputed domain name was attractive to him because it contained the name of the main character of the opera with the same name by Giuseppe Verdi, and that he had created a website containing information about hotels in Egypt. In the Panel’s view, the similarity between the disputed domain name and the name of the opera character does not give rise to any rights or legitimate interests for the Respondent, and does not as such permit the use of the registered AIDA trademark in relation to services, for which this trademark is protected. For these reasons, the Panel is not convinced that the arguments put forward by the Respondent in his communications with the Complainant’s lawyers establish any rights or legitimate interests of the Respondent in the disputed domain name.
The disputed domain name is confusingly similar to the AIDA trademark of the Complainant, which is registered for the territory of the Russian Federation, and the Respondent has provided no explanation whatsoever for its registration and use. As submitted by the Complainant and not denied by the Respondent, the disputed domain name is linked to a website containing information and links to hotels of competitors of the Complainant. In this situation, it is possible that Internet users seeking information about the Complainant’s products and services may reach the Respondent’s website expecting that an affiliation of some sort exists between the Complainant and the Respondent, and then be exposed to the content of the website. The above makes it more likely than not that the Respondent is aware of the goodwill of the Complainant and of the AIDA trademark, and it is likely that this goodwill has motivated the Respondent to choose to register the disputed domain name and to link it to a website containing information and links to the hotels of the Complainant’s competitors.
In the Panel’s view, such conduct could not be regarded as giving rise to rights and legitimate interests of the Respondent in the disputed domain name. Therefore, and in the lack of any evidence or allegations to the contrary, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name within the meaning of the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith
For the purposes of Policy, paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the 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 holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s 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 your website or location or of a product or service on the holder’s website or location.
In the present case, the disputed domain name is confusingly similar to the Complainant’s AIDA trademark, and was registered by the Respondent without having rights and legitimate interests in it, who at the same time was more likely than not being aware of the Complainant and of its goodwill. Having registered it, the Respondent has used the disputed domain name to link it to a website containing information and links to the hotels of the Complainant’s competitors. As discussed in relation to the issue of rights and legitimate interests, this conduct makes it possible that Internet users searching for information about the Complainant’s services may reach the Respondent’s website expecting that an affiliation of some sort exists between the Complainant and the Respondent, and then be exposed to the content of the website, which may lead to situation, in which the Respondent benefits from the initial interest of Internet users and derives income or other advantage, or in which a disruption may be caused to the business of the Complainant.
Taking all the above into account, and in the lack of any contrary evidence, the Panel is prepared to accept that the Respondent has registered and used the disputed domain name in bad faith by intentionally attempting to attract, for commercial gain, Internet users to the website at the disputed domain name by creating a likelihood of confusion with the Complainant’s AIDA trademark as to the source, sponsorship, affiliation, or endorsement of this website. 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.
Assen Alexiev
Sole Panelist
Dated: November 27, 2012
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