The Complainant is Royal Caribbean Cruises Ltd., United States of America (“U.S.”), represented by Sanchez Fischer Levine, LLP, U.S.
The Respondent is Domains By Proxy, LLC, Panama / Carolina Rodrigues, Fundacion Comercio Electronico, Panama. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 6, 2019. On November 7, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 8, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 11, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 18, 2019. 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 the Respondent of the Complaint, and the proceedings commenced on November 22, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 12, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 16, 2019. The Center appointed José Ignacio San Martín Santamaría as the sole panelist in this matter on December 20, 2019. 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 Complainant is a cruise ship company and the proprietor of U.S, trademark registration No. 1397148 ROYAL CARIBBEAN, registered on June 10, 1986, for services in class 39. The disputed domain name was registered on June 29, 2018. The disputed domain name resolves to different websites each time, some of them being a web page where an extension to your browser is intended to be added, other with pornographic content, etc. 5. Parties’ Contentions A. Complainant - The service mark ROYAL CARIBBEAN has been used in commerce since January 1970 and was registered on June 1986. - The disputed domain name fully incorporates the ROYAL CARIBBEAN mark with the addition of a generic letter “t” (e.g., “rotyalcaribbean” from “royalcaribbean”). Indeed, the Respondent likely used the addition of “t” to capture unsuspecting Internet users who attempted to type out “www.royalcaribbean.com” too quickly and inadvertently inserted an extra “t” in the spelling (i.e., since “t” appears, on a standard keyboard, directly to the left of the key of the preceding letter “y”). - The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not a licensee of the Complainant nor is the Respondent otherwise authorized to use the Complainant’s ROYAL CARIBBEAN mark for any purpose. - The Respondent registered and is using the disputed domain name primarily to profit from and exploit the Complainant’s ROYAL CARIBBEAN mark. Upon information and belief, the Respondent is using the disputed domain name to misdirect Internet users to its own website. - The Respondent’s diversionary use of the Complainant’s ROYAL CARIBBEAN mark to redirect Internet users to the Respondent’s page constitutes bad faith registration and use of the disputed domain name under Policy. - The very nature of the Respondent’s domain name registration evidences bad faith. As a consequence, the Complainant requests that the disputed domain name be transferred to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Pursuant to paragraph 4(a) of the Policy and 15 of the Rules, the Panel shall grant the remedies requested if the Complainant proves that: (i) The disputed domain name is 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 disputed domain name; and (iii) The disputed domain name has been registered and is being used in bad faith. Pursuant to paragraph 4(a) of the Policy and 15 of the Rules, for this purpose the Panel shall decide a Complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar The disputed domain name fully incorporates the Complainant’s earlier ROYAL CARIBBEAN trademark, with the addition of a letter “t” before the “y”. In view of the coincidences, it can only be concluded that the disputed domain name is clearly confusingly similar to the Complainant’s trademark. Precisely in relation to the domain names consisting of a misspelling of a complainant’s trademark (i.e. typosquatting), section 1.9 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states: “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. “Examples of such typos include (i) adjacent keyboard letters[…]”. The Panel therefore finds that the disputed domain name is confusingly similar to the Complainant’s trademark as provided under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Having done so, the burden of production shifts to the Respondent to come forward with appropriate evidence demonstrating rights or legitimate interests (see WIPO Overview 3.0 , section 2.1). Given that the Respondent has defaulted, it has not met that burden. Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in a disputed domain name by demonstrating any of the following: (i) before any notice to it of the dispute, the respondent’s 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) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or (iii) the respondent is 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 Respondent’s website cannot be considered as a bona fide offering of services or fair use, as the domain name redirects to different websites with dubious content, some with pornographic material, others that intend to add extensions to the browser, etc. In summary, the Panel finds that the paragraph 4(a)(ii) set forth in the Policy is present. C. Registered and Used in Bad Faith According to paragraph 4(b)(iv) of the Policy, registration or use of a domain name will be considered in bad faith when: “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line 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”. The Complainant’s ROYAL CARIBBEAN trademark is well known. In view of the fact that we are dealing with a typosquatting case and that the letter “t” added to the disputed domain name is precisely next to the letter “y” on the keyboard, it seems clear that when registering the disputed domain name the Respondent deliberately sought to have Internet users who typed the name incorrectly referred to its website. Panels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos) to a famous or widely known trademark by an unaffiliated entity can by itself create a presumption of bad faith (see WIPO Overview 3.0, section 3.1.4). The use of a privacy service also seems to confirm the bad faith of the Respondent. While there may be circumstances that make the use of a privacy service legitimate, several decisions have considered it a circumstance that contributes to consider bad faith proven when it is combined with other types of circumstances. In GVC Holdings plc / ElectraWorks Limited v. Registration Private, Domains By Proxy, LLC / Adnan Atakan Alta,WIPO Case No. D2016-2563, the panel found that: “Although privacy services might be legitimate in certain circumstances, it is for the Panel difficult to see in the present case why the Respondent should need to protect its identity except to make it difficult for the Complainant to protect its trademark rights. The Panel rather believes that the choice of the disputed domain names (which fully incorporate the Complainant’s trademark), the content as well as the design of the Respondent’s corresponding websites rather indicate that the Respondent deliberately opted for a privacy shield in order to prevent an efficient enforcement of legitimate trademark rights by the Complainant.” Finally, it should be noted that the disputed domain name does not point to a website owned by the Respondent that can be described as bona fide, but rather dynamically points to various sites of dubious content and purpose. Thus, the Panel finds that the disputed domain name was registered and is being used in bad faith by the Respondent in accordance with paragraph 4(b) of the Policy. In the light of the above, the Panel finds that the Complainant has established registration and use of the disputed domain name in bad faith and concludes that paragraph 4(a)(iii) of the Policy is satisfied. 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 José Ignacio San Martín Santamaría
Sole Panelist
Date: December 30, 2019
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