CruiseShipCenters International Inc. v. Leonard Brody
Claim Number: FA0912001297509
Complainant is CruiseShipCenters International Inc. (“Complainant”), represented by John
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cruiseshipcenters.mobi>, registered with 1&1 Internet AG.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 4, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 3, 2009.
On December 7, 2009, 1&1 Internet AG confirmed by e-mail to the National Arbitration Forum that the <cruiseshipcenters.mobi> domain name is registered with 1&1 Internet AG and that Respondent is the current registrant of the name. 1&1 Internet AG has verified that Respondent is bound by the 1&1 Internet AG registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 16, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 5, 2010 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 14, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 <cruiseshipcenters.mobi> domain name is identical to Complainant’s CRUISESHIPCENTERS mark.
2. Respondent does not have any rights or legitimate interests in the <cruiseshipcenters.mobi> domain name.
3. Respondent registered and used the <cruiseshipcenters.mobi> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, CruiseShipCenters International Inc., operates under its CRUISESHIPCENTERS mark. Complainant has registered its mark with multiple governmental authorities, including: (1) the Canadian Intellectual Property Office (“CIPO”) (Reg. No. TMA 704,148 issued January 8, 2008); (2) the United States Patent and Trademark Office (“USPTO”) (Reg. No . 3,387,898 issued February 26, 2008); (3) and the European Union Office for Harmonization in the Internal Market (“OHIM”) (Reg. No. 5,220,124 issued January 30, 2008).
Respondent registered the disputed domain name on November 9, 2006. The disputed domain name does not resolve to an active website.
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 July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant has provided evidence of the registration of its CRUISESHIPCENTERS mark with the following trademark authorities: (1) the CIPO (Reg. No. TMA 704,148 issued January 8, 2008); (2) the USPTO (Reg. No . 3,387,898 issued February 26, 2008); (3) and the OHIM (Reg. No. 5,220,124 issued January 30, 2008). The Panel finds these registrations each meet the requirements of Policy ¶ 4(a)(i) to prove Complainant’s rights in the mark. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world); see also Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a trademark authority).
Respondent’s <cruiseshipcenters.mobi> domain name contains Complainant’s CRUISESHIPCENTERS mark in its entirety and adds the generic top-level domain (“gTLD”) “.mobi.” The Panel finds the addition of a gTLD is irrelevant in distinguishing a disputed domain name from Complainant’s mark. Thus, the Panel finds Respondent’s <cruiseshipcenters.mobi> domain name is identical to Complainant’s CRUISESHIPCENTERS mark under Policy ¶ 4(a)(i). See Starkey v. Bradley, FA 874575 (Nat. Arb. Forum Feb. 12, 2007) (“The suffix .mobi should be treated the same way as .com and should be ignored when comparing the mark and the disputed domain name.”); see also Vanderbilt Univ. v. U Inc., FA 893000 (Nat. Arb. Forum Feb. 19, 2007) (finding the <vanderbilt.mobi> domain name to be identical to the VANDERBILT mark because it did not add anything except the generic top-level domain “.mobi”).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Because of the
reasons the Panel gives in its discussion of Policy ¶ 4(a)(iii),
the Panel declines to analyze Policy ¶ 4(a)(ii). See Creative Curb v. Edgetec Int’l Pty.
Ltd., FA 116765 (Nat. Arb. Forum Sept. 20, 2002) (finding that because the
complainant must prove all three elements under the Policy, the complainant’s
failure to prove one of the elements makes further inquiry into the remaining
element unnecessary); see also VeriSign Inc. v. VeneSign
Complainant has provided evidence of the registration of its CRUISESHIPCENTERS mark with several governmental trademark authorities, however, none of these trademark registrations predate Respondent’s November 9, 2006 registration of the disputed domain name. Complainant has not provided any other arguments or additional supporting documentation regarding the date Complainant first established common law rights in the mark. Therefore, the Panel finds that Respondent’s registration of the <cruiseshipcenters.mobi> domain name predates Complainant’s rights in the CRUISESHIPCENTERS mark and the Panel further finds Respondent did not register or use the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Interep Nat'l Radio Sales, Inc. v. Internet Domain Names, Inc., D2000-0174 (WIPO May 26, 2000) (finding no bad faith where the respondent registered the domain prior to the complainant’s use of the mark); see also Telecom Italia S.p.A. v. NetGears LLC, FA 944807 (Nat. Arb.Forum May 16, 2007) (finding the respondent could not have registered or used the disputed domain name in bad faith where the respondent registered the disputed domain name before the complainant began using the mark).
The Panel finds that Policy ¶ 4(a)(iii) has not been satisfied.
Complainant not having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <cruiseshipcenters.mobi> domain name REMAIN with Respondent.
Louis E. Condon. Panelist
Dated: February 10, 2010
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