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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

AIDA Cruises German Branch of SocietГЎ di Crociere Mercurio S.r.L v. Ulker Internet Hizmetleri Ltd. Ећti.

Case No. D2008-1476

1. The Parties

The Complainant is AIDA Cruises German Branch of SocietГЎ di Crociere Mercurio S.r.L, Rostock, Germany, represented by Selting und Baldermann, Germany.

The Respondent is Ulker Internet Hizmetleri Ltd. Ећti., Antalya, Turkey.

2. The Domain Name and Registrar

The disputed domain name <aida-hotel.com> is registered with Alantron BLTD.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 29, 2008. On September 30, 2008, the Center transmitted by email to Alantron BLTD a request for registrar verification in connection with the disputed domain name. On October 15, 2008, Alantron BLTD 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 and also advising that the language of the registration agreement is Turkish. The Complaint was filed in English. On October 24, 2008, the Center informed the parties that the registration agreement is Turkish, and invited the Complainant to provide evidence of an agreement between the parties to proceed in English, a translated Complaint, or arguments as to why the language of proceedings should be English. In that same communications, the Center invited the Respondent to provide any objection to the proceedings being conducted in English. In reply to that notification the Complainant filed the translated Complaint on November 3, 2008. The Respondent did not provide any objection to the proceedings being conducted in English.

Further, the Center sent an email communication to the Complainant on November 3, 2008 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint both in English and Turkish. The Complainant filed an amendment to the Complaint on November 7, 2008.

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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 25, 2008. The Complaint was provided to the Respondent in Turkish and English. In accordance with the Rules, paragraph 5(a), the due date for Response was December 15, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 17, 2008.

The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on December 23, 2008. 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.

Following the appointment of the Panel, the Complainant submitted a Supplemental Filing to the Center by email on January 5, 2009. In accordance with paragraphs 10 and 12 of the Rules, the Panel shall have the sole discretion to determine the admissibility of the Supplemental Filings received from the Complainant. Presently, and in accordance with the powers enumerated in paragraphs 10 and 12 of the Rules, the Panel has elected to consider the Supplemental Filings.

4. Factual Background

The Complainant is a cruise line based in Rostock Germany that operates cruises in Europe, the United States of America, the Caribbean and Asia. The Complainant is the owner of German Trademark 397 01 328.0 AIDA with an application date of January 15, 1997 for “travel arrangement, transport and accommodation of guests” as well as EC Trademark 468 19 87 AIDA for “travel arrangements, in particular cruises and tours”.

In its Supplemental Filing and exhibited as Annexes 8 and 9, the Complainant has also presented evidence that the Complainant is the owner of IR Trademarks 851 069 AIDA CRUISES and 872 409 AIDA that were applied for on July 24, 2004 and October 11, 2005 respectively.

While no information was provided on the registration date of the disputed domain name, a search on “www.whois.com” by the Panel seemed to indicate that the disputed domain name was registered on March, 2002.

5. Parties’ Contentions

A. Complainant

In satisfying the requirements of paragraph 4(a) of the Policy, the Complainant first avers that the disputed domain name <aida-hotel.com> is identical to the AIDA trademarks held by the Complainant. In addition to the dismissal of the prefix of “www” and the suffix of “.com”, the Complainant contends that the word “hotel” can also be negated as the word “hotel” is descriptive in nature of the travel services under which the Complainant has trademark protection and which the Respondent is advertising on the disputed domain name’s website.

The Complainant further alleges that the Respondent has no rights or legitimate interest in the disputed domain name. The Complainant notes that for the Respondent to have a legitimate interest in the disputed domain name the Respondent would have to use the domain in a noncommercial manner or the use must be connected with a bona fide offering of goods and services. Presently the Complainant states that the Respondent does not have a right to use the AIDA mark and has not obtained a license or authorization from the Complainant to use the mark. The Complainant also notes that the Respondent is using the disputed domain name for a commercial purpose by offering hotel services.

In satisfying the final element of paragraph 4(a) of the Policy, the Complainant contends that the Respondent is using the disputed domain name in bad faith. The Complainant alleges that the disputed domain name is being used improperly since the disputed domain name <aida-hotel.com> is similar to a trademark in which the Complainant has rights and is being used to market the products of a competitor. As a result, this type of use disrupts the business of the Complainant.

According to the Complainant, the fact that the Respondent has used the entirety of the Complainant’s mark in the disputed domain name, as well as the fact that the Respondent is offering their hotel services in German, is evidence that the Respondent sought to advertise their services to individuals in Germany with the assistance of the Complainant’s marks.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that the Complainant must establish each of the following with respect to the disputed domain name:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;

(ii) the respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

The complainant must establish these elements regardless of whether the respondent replies to the complaint. Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465.

Having regard to the circumstances of this particular case, with respect to the Language of Proceedings, in particular, given that the Complaint was provided to the Respondent in both English and Turkish such that the Panel finds no basis on which there might be any prejudice to the Respondent, and given also that the Respondent did not raise any objection to the proceedings being conducted in English, per Rules paragraph 11, the Panel finds it expedient to render the instant decision in English.

A. Identical or Confusingly Similar

In order to satisfy the first element of paragraph 4(a) of the Policy, the Complainant must show that the disputed domain name is identical or confusingly similar to a mark in which the Complainant has rights. The Complainant has evidenced that they had registered a number of marks in the term “AIDA” beginning in 1997 and currently use those marks in their cruise business. The Complainant’s Supplemental Filings in the form of Annexes 8 and 9 also indicate that the Complainant was the owner of two IR Trademarks for both AIDA CRUISES and AIDA which were filed in 2004 and 2005 respectively.

Presently the Respondent’s use of the domain name <aida-hotel.com> wholly incorporates the Complainant’s AIDA mark. The Panel also disregards the addition of the suffix “.com” as an irrelevant distinction that does not alter the likelihood of confusion. VAT Holding AG v. Vat.com, WIPO Case No. D2000-0607.

One question is whether the use of the term “hotel” distinguishes the Respondent’s domain name from the business of the Complainant. Previous panels have found that the term “hotel” can be a generic descriptive term that failed to distinguish the domain name from the Complainant’s mark. ACOR, Society Anonyme a Directoire et Conseil de Surveillance v. SEOCHO, WIPO Case No. D2002-0517. In the present instance, the Complainant has not shown that the Complainant’s business or the AIDA mark has been commonly associated with hotel services and based on their website, the Complainant’s business appears to encompass cruise services only. Additionally no evidence has been submitted by the Complainant indicating otherwise.

That being said, the Complainant has shown that the AIDA mark is within a class that encompasses both “travel arrangement” and “accommodation” in both Germany and abroad. The Panel finds that this could be construed to include hotel services as well. Additionally, for the purposes of the Policy, numerous cases have held that a domain name that wholly incorporates the Complainant’s registered mark can be sufficient evidence to establish that the domain name is confusingly similar. Nokia Group v. Mr. Giannattasio Mario, WIPO Case No. D2002-0782; Quixtar Investments, Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253. Also, the content of a website is not generally relevant to the test of whether a domain name is confusingly similar to the mark of the Complainant. Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic, WIPO Case No. D2000-1698.

As a result, the Panel finds by the preponderance of the evidence that the Complainant has established the first element of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii) of the Policy, the Complainant is required to make out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. Once that case has been made by the Complainant, the Respondent must demonstrate that they have rights or a legitimate interest in the domain name. Belupo d.d. v. WACHEM d.o.o, WIPO Case No. D2004-0110. Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances that the Respondent may use to demonstrate that they possess rights or legitimate interests in a domain name. The absence of rights or legitimate interests can also be established if a complainant makes out a prima facie case and the respondent does not rebut that showing.

The Complainant has shown that the AIDA trademark has been used in the Complainant’s business since the mark’s registration in 1997. Additionally the Complainant also has rights to the AIDA trademark internationally beginning in 2004 as evidenced by Annexes 8 and 9. This usage and registration seems to be well before the Respondent’s registration of the disputed domain name. Additionally the Complainant has not given the Respondent a license or authorization to use the AIDA mark. The Respondent has not shown that they are commonly associated with the AIDA mark or that they have any previous rights with the Complainant’s marks.

Presently the Respondent has not entered any response to the Complainant’s allegations. As stated above, while the absence of a response may make it more likely than not that the Complainant’s have established their case, the Complainant is still required to establish a prima facie case. The Complainant alleges that the Respondent is not making a bona fide offering of goods and services.

In the present case, the Panel is not convinced that the Complainant has established a prima facie case against the Respondent in that manner. While the Complainant has shown that the Respondent did not have any rights from the Complainant to use the Complainant’s mark, this fact alone is not conclusive as to whether the Respondent’s use of the term “Aida” in his business was legitimate. Amscot Corporation v. Fibertech Columns, Inc., WIPO Case No. D2005-0656. Additionally the Panel finds that based on the lack of evidence submitted by the Complainant as well as the content of the website at the disputed domain name itself, which significantly, appears from the Internet Archive (“www.archive.org”) to have been used in substantially the same manner since its registration in 2002, it can be deduced that prior to the notice of the present dispute the Respondent was using the domain name in connection with a bona fide offering of goods and services in accordance with paragraph 4(c)(i) of the Policy.

The Respondent’s website does not e.g. host pay-per-click links targeting the Complainant’s mark, but rather offers hotel accommodation at what appears to be a small hotel located on the coast in Turkey. The website appears for all intents and purposes to be for a legitimate commercial purpose. Additionally there is nothing on the website that suggests that the Respondent is benefitting from the goodwill of the Complainant’s mark and it appears that the Respondent’s business is different from that of the Complainant.

The Complainant has failed to provide any evidence that their services include anything apart from cruises or evidence to show that the Respondent was aware of the AIDA mark and intended to capitalize off it. Additionally, the cruise services offered by the Complainant and the relatively small-scale Turkish hotel services offered by the Respondent would generally not be construed as confusingly similar. While the Rules permit a Panel to engage in limited factual research, a Panel is not permitted to construct the Complainant’s entire case. In the present instance, the existing evidence does not establish a prima facie case for the Complainant.

As a result the Panel finds that the Complainant has failed to meet its burden under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

In light of the Panel’s finding under the second element above and the fact that the Complainant is required to establish all three elements under paragraph 4(a) of the Policy, the Panel need not make a finding under the third element.

7. Decision

For all the foregoing reasons, the Complaint is denied.


Nasser A. Khasawneh
Sole Panelist

Dated: January 6, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-1476.html

 

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