Complainant is Silversea Cruises, Ltd. of Miami, Florida, United States of America (“United States”), represented by Carey Rodriguez Milian Gonya, LLP, United States.
Respondent is Whois Agent, Domain Protection Services, Inc. of Denver, Colorado, United States / Domain Vault, Domain Vault LLC of Dallas, Texas, United States. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with N, Inc. (N LLC) (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 10, 2018. On October 11, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 12, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on October 16, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on October 16, 2018.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 22, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 11, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 12, 2018.
The Center appointed John C. McElwaine as the sole panelist in this matter on November 21, 2018. 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
Complainant is a Bahamian corporation operating a cruise line with its principle place of business in Miami, Florida, United States.
Complainant owns two trademark registrations relevant to this matter: SILVERSEA, U.S. Reg. No. 2539594 and SILVERSEA CRUISES, U.S. Reg. No. 1841499; registered February 19, 2002 and June 21, 1994, respectively. Both marks are registered in International Class 39 for cruise ship services.
The Domain Name was registered on November 10, 2002. The Domain Name is registered with the Registrar. The Domain Name resolves to a website with pay-per-click links related to Complainant’s cruise line business. 5. Parties’ Contentions A. Complainant
Complainant contends that the Domain Name should be transferred to Complainant because each of the three elements required in paragraph 4(a) of the Policy has been established.
With respect to the first element of the Policy, Complainant alleges to own a trademark for SILVERSEA for cruise ship services, Registration No. 2539594, and that it has used SILVERSEA in commerce since April 2, 1994. Complainant points out that the SILVERSEA trademark is fully included in the Domain Name and is different only by the addition of the letter “s”. Furthermore, Respondent alleges that the website displayed at the Domain Name offers cruises linked to “Cheapest cruises, Antarctica, Crystal Cruises Cruise, and more cruise lines in direct competition with Silversea Cruises”. As such, it is alleged that the Domain Name offers services in cruise ship services, the same class of services as the registered service mark, creating a likelihood of confusion between Complainant’s SILVERSEA trademark and the Domain Name.
With respect to the second element of the Policy, Complainant alleges that Respondent does not have any rights or legitimate interests in the Domain Name because it is not a licensee of the SILVERSEA trademark and there is no evidence that Respondent is commonly known by the name “Silverseas”. On the other hand, Complainant asserts that Respondent is using the Domain Name to resolve to a website that uses the SILVERSEAS mark to offer links to competitors of Complainant. Complainant asserts that such use of a confusingly similar domain name to divert traffic to its website is not a bona fide offering of goods or services.
With respect to the third element of the Policy, Complainant alleges that Respondent registered and is using the Domain Name primarily to profit from and exploit Complainant’s SILVERSEA trademark. In particular, Complainant avers that Respondent is using the Domain Name to misdirect Internet users to its own website, which is a parked page that contains sponsored listings for cruise line services. Complainant further points out that Respondent is using Complainant’s SILVERSEA trademark on Respondent’s website to directs customers away from Complainant’s services by providing access to other third-party competing service providers. As such, Complainant claims that Respondent’s diversionary use of Complainant’s SILVERSEA trademark to redirect Internet users to sponsored listings for which Respondent presumably receives click‑through fees constitutes bad faith registration and use of the disputed domain name under the Policy, paragraph 4(b)(iv). In addition, supporting a finding of bad faith, Complainant alleges that Respondent knowingly registered the Domain Name containing an exact reproduction with the addition of an “s” of the well-known SILVERSEA mark and to capitalize on consumer recognition of the SILVERSEA mark and that such typosquatting evidences bad faith under the Policy, paragraph 4(a)(iii). Complainant additional claims that the SILVERSEA trademark is unique and distinctive such that it is unlikely that Respondent devised the term S on its own. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Even though Respondent has defaulted, paragraph 4 of the Policy requires that, in order to succeed in this UDRP proceeding, Complainant must still prove their assertions with evidence demonstrating:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
Because of Respondent’s default, the Panel may accept as true the reasonable factual allegations stated within the Complaint, and may draw appropriate inferences therefrom. See St. Tropez Acquisition Co. Limited v. AnonymousSpeech LLC and Global House Inc.,WIPO Case No. D2009-1779; Bjorn Kassoe Andersen v. Direction International,WIPO Case No. D2007-0605; see also paragraph 5(f) of the Rules (“If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint”). Having considered the Complaint, the Policy, the Rules, the Supplemental Rules and applicable principles of law, the Panel’s findings on each of the above cited elements are as follows. A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires Complainant show that the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights. Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.2.1. Here, Complainant has provided evidence of ownership of registrations for the mark SILVERSEA and SILVERSEA CRUISES in the United States. The Panel finds that Complainant owns valid trademark rights in the SILVERSEA trademark, which predate the registration of the Domain Name.
The Domain Name is virtually identical to the SILVERSEA trademark but for the addition of the letter “s” creating a plural version of the SILVERSEA trademark. The addition of the letter “s” does not distinguish the Domain Name from the SILVERSEA trademark and is a common form of typosquatting. See ESH Strategies Branding, LLC v. Kumpol Sawaengkarn,WIPO Case No. D2011-0843 (the addition or subtraction of the letter “s” from a name is a common mistake Internet users make, and therefore, constitutes typosquatting).
Accordingly, the Panel finds that the Domain Name is confusingly similar to Complainant’s SILVERSEA trademark in which Complainant has valid trademark rights. Therefore, Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Under the Policy, paragraph 4(a)(ii), Complainant has the burden of establishing that Respondent has no rights or legitimate interests in the Domain Name. Complainant needs only make a prima facie showing on this element, at which point the burden of production shifts to Respondent to present evidence that it has rights or legitimate interests in the Domain Name. If Respondent has failed to do so, Complainant is deemed to have satisfied its burden under paragraph 4(a)(ii) of the Policy. See Vicar Operating, Inc. v. Domains by Proxy, Inc. / Eklin Bot Systems, Inc.,WIPO Case No. D2010-1141; see also Nicole Kidman v. John Zuccarini, d/b/a Cupcake Party,WIPO Case No. D2000-1415; Inter-Continental Hotels Corporation v. Khaled Ali Soussi,WIPO Case No. D2000-0252.
The Policy, paragraph 4(c), provides a non-exhaustive list of circumstances in which a respondent could demonstrate rights or legitimate interests in a contested domain name:
“(i) before any notice to you 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 (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 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”.
With respect to Complainant’s contention that Respondent is not commonly known by the Domain Name, the Panel notes that the WhoIs information lists Respondent as “Domain Protection Services, Inc. / Domain Vault” and the Panel therefore finds, based on the record and the lack of evidence otherwise, that Respondent is not commonly known by the Domain Name. See Moncler S.p.A. v. Bestinfo,WIPO Case No. D2004-1049 (“the Panel notes that the Respondent’s name is ‘Bestinfo’ and that it can therefore not be ‘commonly known by the Domain Name’).
The Panel finds that Respondent is not making bona fide use of the Domain Name under paragraph 4(c), as the Domain Name links to what appears to be a parked page. This Panel agrees with the viewpoint that to register domain names and park them to earn rental revenue by allowing a third party to use the domain name is not by itself to be considered a bona fide use of the domain name in connection with the offering of goods or services by the registrant of that domain name. Trade Me Limited v. Vertical Axis Inc.,WIPO Case No. D2009-0093. As such, the Panel recognizes that parking webpages may be permissible in some circumstances, as discussed in section 2.9 of WIPO Overview 3.0. However, none of those factors are present here. There is no evidence that the Domain Name consists of dictionary or common words or phrases that support the pay-per-click links genuinely related to the generic meaning of the Domain Name at issue. Instead, the Domain Name appears to have been registered with the intent that confused Internet users searching for Complainant will be directed to Respondent’s parked webpage for commercial gain. Such activity does not provide a legitimate interest in the Domain Name under the Policy. See M.F.H. Fejlesztõ Korlátolt Felelõsségû v. Satoshi Shimoshita,WIPO Case No. D2014-1726.
Lastly, Respondent’s use of the Domain Name is not noncommercial or fair use under paragraph 4(c)(iii) of the Policy, given that Respondent purports to offer information and insurance quotes for competitors of Complainant. Such activity does not amount to a fan site, criticism, or other activity that may be considered noncommercial or fair. See, e.g., Sermo, Inc. v. CatalystMD, LLC,WIPO Case No. D2008-0647.
Although Respondent has been properly notified of the Complaint by the Center, Respondent failed to submit any response on this point. The silence of a respondent may support a finding that it has no rights or legitimate interests in respect of the domain name. See Alcoholics Anonymous World Services, Inc., v. Lauren Raymond,WIPO Case No. D2000-0007; Ronson Plc v. Unimetal Sanayi ve Tic.A.S.,WIPO Case No. D2000-0011. Additionally, previous UDRP panels have found that when respondents have not availed themselves of their rights to respond to complainants, it can be a further inference in appropriate circumstances that respondents have no rights nor legitimate interests in the domain name at issue. See AREVA v. St. James Robyn Limoges,WIPO Case No. D2010-1017; Nordstrom, Inc. and NIHC, Inc. v. Inkyu Kim,WIPO Case No. D2003-0269.
Based on the foregoing, Complainant has made a prima facie showing of Respondent’s lack of any rights or legitimate interests and Respondent has failed to come forward to rebut that showing. As provided for by paragraph 14 of the Rules, the Panel may draw such inference from Respondent’s default as it considers appropriate. The Panel finds that Respondent does not have rights or legitimate interests in the Domain Name and that Complainant has met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Under paragraph 4(a)(iii) of the Policy, Complainant must show that Respondent registered and is using the Domain Names in bad faith. A non-exhaustive list of factors constituting bad faith registration and use is set out in paragraph 4(b) of the Policy.
Complainant contends that the registration by Respondent of a domain name, which constitutes a typosquatting variant of Complainant’s SILVERSEA trademark establishes that Respondent was aware of the existence of Complainant’s trademark. Bad faith may be found where a domain name is so obviously connected with a well-known trademark that its very use by someone with no connection to the trademark suggests opportunistic bad faith. See LEGO Juris A/S v. Reiner Stotte,WIPO Case No. D2010-0494; Sanofi-aventis v. Nevis Domains,, LLC,WIPO Case No. D2006-0303. In fact, panels have held that typosquatting alone is evidence of bad faith registration of the disputed domain name. See ESPN, Inc. v. XC2,WIPO Case No. D2005-0444. Based on Complainant’s submissions, which were not rebutted by Respondent, the content of the website displayed by the Domain Name references Complainant or its competitors. Furthermore, and as also detailed above, Respondent is not commonly known by the Domain Name and does not have any rights or legitimate interests in the Domain Name. Accordingly, on the record there is no explanation or legitimate interests to justify Respondent’s choice to register the Domain Name. With no response from Respondent, this claim is undisputed and the Panel can infer bad faith registration.
Paragraph 4(b)(iv) of the Policy provides that bad faith may be shown if “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 web site or location or of a product or service on your web site or location”. As discussed herein, Respondent registered the Domain Name, which is confusingly similar to Complainant’s SILVERSEA trademark and developed a webpage displaying Complainant’s SILVERSEA trademark and providing links to competing cruise lines. See Identigene, Inc. v. Genetest Labsoratories,WIPO Case No. D2000-1100 (finding bad faith where the respondent’s use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site); MathF, LLC v. Weiguang Huang,WIPO Case No. D2000-0743 (finding bad faith under paragraph 4(b)(iv) of the Policy where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark).
For these reasons, the Panel holds that Complainant has met its burden of showing that Respondent registered and is using the Domain Name 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 Name be transferred to Complainant.
John C McElwaine
Sole Panelist
Date: December 3, 2018
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