Carnival Corporation v. Domain Administrator
Claim Number: FA0902001246079
Complainant is Carnival Corporation (“Complainant”), represented by Adam
D. Mandell, of Millen, White, Zelano & Branigan, P.C.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <carnivalcorporation.com>, registered with Moniker Online Services, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Paul A. Dorf (Ret.), as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 11, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <carnivalcorporation.com> domain name is confusingly similar to Complainant’s CARNIVAL mark.
2. Respondent does not have any rights or legitimate interests in the <carnivalcorporation.com> domain name.
3. Respondent registered and used the <carnivalcorporation.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Corporation, holds a registration of the CARNIVAL mark with the United
States Patent and Trademark Office (“USPTO”) (Reg. No. 1,495,405 issued
Respondent registered the <carnivalcorporation.com>
domain name on
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."
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(e), 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 and inferences set forth in the
Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc.
v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum
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.
The Panel finds that Complainant’s registration of its CARNIVAL
mark with the USPTO is sufficient to establish Complainant’s rights in the mark
pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
The <carnivalcorporation.com> domain name
Complainant’s entire CARNIVAL mark, adding the generic top-level domain (“gTLD”) “.com” and
the descriptive term “corporation.” The
disputed domain name reflects the name of Complainant’s business
organization. The addition of a gTLD and
a term that describes Complainant’s business renders the disputed domain name
confusingly similar to the mark pursuant to Policy ¶ 4(a)(i). See
Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy
¶ 4(a)(ii), Complainant must first establish a prima facie case that
Respondent has no rights or legitimate interests in the disputed domain
name. If the Panel finds that
Complainant’s allegations establish such a prima facie case, the burden
shifts to Respondent to show that it does indeed have rights or legitimate
interests in the disputed domain name pursuant to the guidelines in Policy ¶
4(c). Since no Response was submitted in
this case, the Panel may presume that Respondent has no rights or legitimate
interests in the disputed domain name. See
Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l,
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <carnivalcorporation.com>
domain name. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the CARNIVAL mark, and the WHOIS information identifies Respondent as “Domain Administrator.” Thus, Respondent has not established rights
or legitimate interests in the disputed domain name under Policy ¶
4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Respondent is using the <carnivalcorporation.com> domain name to link to third-party websites some of which offer travel
services. Respondent’s use of a domain
name that is confusingly similar to Complainant’s CARNIVAL mark to redirect Internet users interested in Complainant’s
online services to websites that offer competition for those services is not a
use in connection with a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat.
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <carnivalcorporation.com>
domain name to resolve to a website containing links to third-party websites,
some of which directly compete with Complainant. The Panel finds Respondent is using the <carnivalcorporation.com> domain name
to disrupt Complainant’s business by diverting Internet users to Complainant’s
competitors. This is evidence of bad
faith registration and use pursuant to Policy ¶ 4(b)(iii). See
Puckett, Individually v. Miller, D2000-0297 (WIPO
The Panel infers
that Respondent receives click-through fees for diverting Internet users to
third-party websites. Because
Respondent’s domain name is confusingly similar to Complainant’s CARNIVAL
mark, Internet users accessing
Respondent’s disputed domain name may become confused as to Complainant’s
affiliation with the resulting website.
The Panel therefore finds that Respondent’s use of the <carnivalcorporation.com> domain name constitutes bad faith registration and use
pursuant to Policy ¶ 4(b)(iv). See
G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat. Arb.
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <carnivalcorporation.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: March 24, 2009
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