Viking River Cruises, Inc. / Viking River Cruises (Bermuda) Ltd v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2006001899786
Complainant is Viking River Cruises, Inc. / Viking River Cruises (Bermuda) Ltd (“Complainant”), represented by Beth M. Goldman of Orrick, Herrington & Sutcliffe LLP, United States. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mvikingcruises.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 10, 2020; the Forum received payment on June 10, 2020.
On June 11, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <mvikingcruises.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 15, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@mvikingcruises.com. Also on June 15, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 9, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it owns and operates one of the world’s leading river and ocean cruise lines. Complainant started as a river cruise company in Russia in 1997 and has since expanded its services to include both river and ocean cruises serving customers and ports in Asia, Europe, Africa, Australia and the Americas. With its operational headquarters in Basel, Switzerland, Complainant provides destination-focused cruise itineraries designed for travelers with an interest in geography, culture and history. Each journey includes a shore excursion at every port and a variety of cultural events such as performances of music and art, cooking demonstrations, informative port talks and carefully selected guest lecturers. Complainant currently operates a fleet of more than seventy vessels and state-of-the-art ships that have received numerous accolades from industry experts and travelers since their launch. Complainant has rights in the VIKING CRUISES mark based upon its registration of the mark in the United States in 2014.
Complainant alleges that the disputed domain name is confusingly similar to its VIKING CRUISES mark because it wholly incorporates the mark, merely adding the letter “m” before the mark as well as the “.com” generic top-level domain (“gTLD).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s VIKING CRUISES marks and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain to redirect users to the websites of Complainant’s competitors: the resolving website displays click-through advertising links.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent is using the disputed domain name to confuse and divert visitors to Complainant’s competitors for commercial gain. Further, Respondent registered the disputed domain name with actual and/or constructive knowledge of Complainant’s rights in the VIKING CRUISES mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark VINKING CRUISES dating back to at least 2014.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that contains links to products and services that compete with those of Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name wholly incorporates Complainant’s VIKING CRUISES mark, merely adding the letter “m” and the “.com” gTLD to the mark. The addition of a single letter and a gTLD may not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Google, Inc. v. DktBot.org, FA 286993 (Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i)”); see also Starwood Capital Grp. Global LLC v. Resort Realty, FA 1043061 (Forum Sept. 6, 2007) (“Furthermore, the addition of the generic top-level domain ‘.com’ does nothing to eliminate the confusing similarity, as a top-level domain is a requirement for all domain names”). Thus, the Panel finds that the <mvikingcruises.com> domain name is confusingly similar to Complainant’s VIKING CRUISES mark under Policy ¶ 4(a)(i).
Respondent is not licensed or authorized to use Complainant’s VIKING CRUISES mark and is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names”). Here, the WHOIS information of record notes “Carolina Rodrigues / Fundacion Comercio Electronico” as the registrant. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website displays click-through advertising for cruises that compete with those of Complainant. Using a domain name to display links to competing third parties is not a bona fide offering of goods or services or a legitimate noncommercial fair use pursuant to Policy ¶¶ 4(c)(i) or (iii). See Walgreen Co. v. Privacy protection service - whoisproxy.ru, FA 1785188 (Forum June 10, 2018) (“Respondent uses the <walgreensviagra.net> domain name to pass itself off as Complainant and display links to a website offering products similar to those offered by Complainant. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii)”). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent is using the disputed domain name to confuse and divert visitors to Complainant’s competitors for commercial gain. Use of a domain name to host links to competitors of a complainant may demonstrate bad faith in use and registration under Policy ¶ 4(b)(iii) and (iv). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Forum Dec. 12, 2007) (“Respondent currently utilizes the disputed domain name, <usaa-insurance.net>, to resolve to a website featuring links to third-party competitors of Complainant. The Panel finds such use establishes Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).”); see also Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum February 20, 2015) (“This Panel agrees that Respondent’s use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mvikingcruises.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 9, 2020
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