The Complainant is AIDA Cruises – German Branch of Costa Crociere S.p.A. of Rostock, Germany represented by Selting und Baldermann, Germany.
The Respondents are Victor Morozov of Omsk, Russian Federation and 1&1 Internet, Inc. of Chesterbrook, Pennsylvania, United States of America. 2. The Domain Names and Registrar
The disputed domain names and (the "Domain Names") are registered with 1&1 Internet AG. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 24, 2013. On July 24, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. The Registrar transmitted its verification response for on July 25, 2013 and for on July 29, 2013 by email to the Center disclosing registrant and contact information for the Domain Names, which differed from the named Respondent and contact information in the Complaint.
The Center sent an email communication to the Complainant on August 5, 2013 providing the registrant and contact information disclosed by the Registrar and invited the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on August 9, 2013.
The Center verified that the Complaint together with the amendment to 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondents of the Complaint, and the proceedings commenced on August 14, 2013. In accordance with paragraph 5(a) of the Rules, the due date for Response was September 3, 2013. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on September 4, 2013.
The Center appointed Ian Lowe as the sole panelist in this matter on September 11, 2013. 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 paragraph 7 of the Rules. 4. Factual Background
The Complainant is a cruise line based in Rostock, Germany. It is a market leader in Germany with an annual turnover in 2010 of EUR 882.7 million. It operates cruises in Europe, the United States, the Caribbean and Asia using nine cruise ships, including two named “AIDAcara” and “AIDAvita”.
The Complainant is the registered proprietor of German trademarks, number 30173120 AIDACARA and number 30173121 AIDAVITA, both registered on February 5, 2001 in Classes 12, 25, 39, 41 and 43. AIDA Cruises – German Branch of Societa di Crociere Mercurio S.r.l. of Rostock, Germany, which the Panel takes to be an associate company of the Complainant, is the registered proprietor of International trademark registrations, number 780806 AIDACARA and number 780805 AIDAVITA, both registered on April 27, 2002 in a number of classes, designating the European Union, the United Kingdom and the Russian Federation, amongst other territories.
The Domain Names were both registered by the Respondent 1&1 Internet Inc. on December 22, 2011 and were so registered at the time of the Complaint. It appears from subsequent WhoIs records that the Domain Names were each transferred into the name of the Respondent Victor Morozov (the “Respondent”) on the date of the respective Registrar verification responses – namely July 25 and July 29, 2013. At the time of the Complaint, the Domain Names did not resolve to any website. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Names are identical to its AIDACARA and AIDAVITA trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Names and that the Respondent registered and is using the Domain Names in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names, the Complainant must prove that:
(i) the Domain Names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) the Domain Names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
Ignoring the suffix ".info" and the hyphens in between, for example, “aida” and “cara”, the Domain Names are identical to the trademarks AIDACARA and AIDAVITA, in which the Complainant has undisputed, widespread rights. The Panel therefore finds that the Domain Names are identical or confusingly similar to trademarks in which the Complainant has rights. B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint. The Complainant’s trademarks are distinctive, and in the Panel's view, it is almost impossible to contemplate how the Domain Names could refer to anything other than the cruise ships operated by the Complainant and therefore the associated marks. The Domain Names are not being used for any purpose and have not been since their registration, some 18 months before the Complainant was filed. The Panel finds that the Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in the Domain Names. In the absence of a Response, there is no rebuttal of this strong prima facie case. The Panel cannot conceive of any such rights or legitimate interests.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Names. C. Registered and Used in Bad Faith
Although the Domain Names do not appear to be in active use, not resolving to any website, the consensus view amongst panelists is that this does not prevent a finding of bad faith use. See the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) and in particular, the Telstra decision – Telstra Corporation v. Nuclear Marshmallows, WIPO Case No. D2000-0003. It is necessary to examine all the circumstances of the case to determine whether the Respondent is acting in bad faith. In this case, for the reasons set out above, the Panel cannot conceive of any legitimate interest the Respondent could have in the Domain Names, comprising of AIDACARA and AIDAVITA trademarks, or of any good faith reason to register the Domain Names. The Respondent has chosen not to respond to the Complaint, and in the view of the Panel, the Respondent must have had the Complainant's trademarks in mind and been fully aware of the Complainant's rights and interests in the marks when it registered the Domain Names, initially, it seems, using the 1&1 Internet privacy service. The Panel considers that the clear inference is that the Respondent registered the Domain Names in bad faith, fully aware of the notoriety of the marks, intending to derive some benefit from the Complainant's reputation in the marks or intending to profit from a sale of the Domain Names to the Complainant (or one of its competitors). In the circumstances, in the Panel's view, the passive use of the Domain Name also amounts to bad faith use.
Accordingly, the Panel finds that the Respondent registered and has used the Domain Names in bad faith. 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 Domain Names and be transferred to the Complainant.
Ian Lowe
Sole Panelist
Date: September 27, 2013
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