Carnival Corporation v. Bill McCoy
Claim Number: FA1103001377719
Complainant is Carnival Corporation (“Complainant”), represented by Adam D. Mandell of Millen, White, Zelano & Branigan, P.C., Virginia, USA. Respondent is Bill McCoy (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <carnivalfuncruise.com>, registered with FABULOUS.COM PTY LTD.
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.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 13, 2011; the National Arbitration Forum received payment on March 15, 2011.
On March 14, 2011, FABULOUS.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <carnivalfuncruise.com> domain name is registered with FABULOUS.COM PTY LTD. and that Respondent is the current registrant of the name. FABULOUS.COM PTY LTD. has verified that Respondent is bound by the FABULOUS.COM PTY LTD. 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 March 15, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 4, 2011 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@carnivalfuncruise.com. Also on March 15, 2011, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 7, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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" 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 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:
Complainant is Carnival Corporation, owner of the world famous CARNIVAL mark for use in connection with cruise ship services and other goods and services. Complainant is part of a global cruise company that is one of the largest vacation companies in the world. Together with its affiliated companies, Complainant attracts 8.5 million guests annually.
Complainant owns a host of registrations in the United States and throughout the world for various marks comprising in whole or in part the term, “CARNIVAL” for use in connection with “cruise ship services” in International Class 039. Complainant’s trademark registrations in the United States include, but are not limited to, the following:
Mark: CARNIVAL CRUISE LINES
Registration No.: 1489408
Registration Date: May 24, 1988
Services: Cruise Ship services
Mark: CARNIVAL
Registration No.: 1495405
Registration Date: July 5, 1988
Services: Cruise ship services; casino services; hotel services
Mark: CARNIVAL & Design
Registration No.: 3189529
Registration Date: December 26, 2006
Services: Cruise ship services; Travel agency services, namely, making reservations and bookings for transportation; Casino services; Hotel services; Travel agency services, namely, making reservations and bookings for temporary accommodations
Also, Complainant owns a host of registrations in the United States and throughout the world for various marks comprising in whole or in part the term, “FUN” for various goods and services, including in connection with “cruise ship services” in International Class 039. These include, but are not limited to, the following:
Mark: THE FUN SHIPS
Registration No.: 1112889
Registration Date: February 6, 1979
Services: Cruise ship services
Mark: YOUR KIND OF FUN
Registration No.: 1925933
Registration Date: October 10, 1995
Services: Cruise ship services, travel agency services, namely making reservations and bookings for transportation; entertainment services, namely casino services, organizing and conducting stage shows, nightclub shows, contests, dances and parties; hotel/resort services.
Mark: FUN SHIP
Registration No.: 2284478
Registration Date: October 12, 1999
Services cruise ship services; entertainment services, namely, casino services and organizing and conducting stage shows, nightclub shows, contests, dances and parties; hotel and resort services.
Complainant’s marks, along with Complainant’s trade name and corporate name, consisting in whole or in part of the term “CARNIVAL” and/or “FUN” are collectively referred to hereinafter as the “Carnival Mark.”
Complainant, either directly, through its predecessor-in-interest, and/or by the benefit of use by its authorized licensees, continuously has used, and is using, these registered marks in commerce in connection with the services identified in the registrations since at least as early as the date of first use set forth therein. Further, Complainant continuously has used, and is using, the Carnival Mark in connection with cruise ship services well prior to the acts by Respondent complained of herein. In this regard, all but one of the U.S. registrations identified above are “incontestable” and entitled to the privileges provided by 15 U.S.C. §§ 1065 and 1115(b). The incontestable registrations constitute conclusive evidence of Complainant’s exclusive right to use the mark featured therein throughout the entire United States, and the remaining United States registration identified above constitutes presumptive evidence of Complainant’s exclusive right to use the subject mark throughout the entire United States.
Throughout many years, Complainant has expended considerable funds and made significant efforts in promoting and advertising its goods and services identified by the Carnival Mark. As a result of these efforts, as well as its tremendous market penetration, Complainant’s strict quality control requirements, and active trademark enforcement program, Complainant has established an enviable reputation, acquired substantial goodwill, and attained distinctiveness in its marks throughout the entire United States, and much of the world.
Complainant also has actively enforced its rights in the Carnival Mark. It routinely sends “cease and desist” letters to other parties attempting to use a confusingly similar designation. Complainant has pursued cases under the UDRP in which it has been successful in forcing the transfer of a domain name consisting in part of the term CARNIVAL. E.g., Carnival Corporation v. Domain Administrator, Case No. FA 1246079 (NAF March 24, 2009)(carnivalcorporation.com). Additionally, Complainant has pursued claims against other users of CARNIVAL or a similar designation in the courts under the trademark laws. As a result of these substantial efforts, Complainant has been able to preserve the unique and distinctive character of its mark.
In sum, by virtue of Complainant’s extensive marketing and promotional activities, the substantial sales volume for services and products offered under the mark, and its strong enforcement and registration program, the Carnival Mark has developed into one of the world’s most powerful commercial symbols.
FACTUAL AND LEGAL GROUNDS
The UDRP requires the transfer or cancellation of a domain name if the Complainant can establish (1) that the domain name at issue is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (2) that the Respondent has no rights or legitimate interests with respect to the domain name; and (3) that the Respondent has registered and used the domain name in bad faith. UDRP Rule 4(a). Each of these factors favors Complainant in this case. Accordingly, transfer of the Domain Name is appropriate.
A. The Domain Name is Identical or Confusingly Similar to the Carnival Mark.
The Domain Name carnivalfuncruise.com clearly is at least confusingly similar to Complainant’s Carnival Mark.
The Domain Name at issue incorporates the CARNIVAL trademark in its entirety, and merely adds the terms “fun” and “cruise” (both of which figure prominently in other trademarks owned by Complainant) and the generic top-level domain name “.com”.
The combination of two of complainant’s marks renders a disputed domain name confusingly similar to the marks in question. See, e.g., Microsoft Corporation v. nairf, FA 1364857 (NAF Jan. 31, 2011); see also Nintendo of Am. Inc. v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (finding confusing similarity where a respondent combined a complainant’s POKEMON and PIKACHU marks to form the <pokemonpikachu.com> domain name).
Moreover, the term “cruise” bears an obvious relationship to Complainant’s business. Under such circumstances, other panelists have not hesitated to find confusing similarity. See, e.g., Florists’ Transworld Delivery, Inc. v. Beltway Florist, Inc., FA1233208 (NAF Dec. 15, 2008) (MYFTDFLOWERS.COM).
Finally, the addition of a generic top level domain name is not relevant in determining whether a domain name is confusingly similar. See, e.g., Isleworth Land Co. v. Lost in Space, SA, FA 117330 (NAF Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶4(a)(i) analysis.”).
In consideration of the unique, famous and highly distinctive nature of the Carnival Mark, Complainant submits that the Panelist must find that the Domain Name is confusingly similar to its mark.
B. Respondent has no Right or Legitimate Interest in the Domain Name.
The UDRP sets forth a list of circumstances that can demonstrate a right or legitimate interest in a disputed domain name. It appears that none of these circumstances is present in this case. Accordingly, the Panelist must conclude that Respondent has no right or legitimate interest in the Domain Name.
A right or legitimate interest in a disputed domain name may be demonstrated where the registrant has been commonly known by the domain name, even if it has acquired no trademark or service mark rights. UDRP ¶4(c)(ii). The WHOIS information for the Domain Name identifies the Respondent as Bill McCoy. To the best of Complainant’s knowledge, Respondent is not commonly known by the name CARNIVALFUNCRUISE.COM, nor could it be without authorization from Complainant.
The other ways for Respondent to show a legitimate interest enumerated in UDRP ¶4(c) are (1) to establish that, prior to receiving any notice of the dispute, Respondent used or made 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 (UDRP ¶4(c)(i)); and (2) Respondent is making noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or tarnish the trademark or service mark at issue (UDRP ¶4(c)(iii)).
It is obvious after even a cursory review of the website to which the Domain Name points that Respondent’s use of the Domain Name cannot be characterized as non-commercial or “fair.” Rather, it is apparent that Respondent is attempting to divert consumers to its site for commercial gain by improperly using the Carnival Mark in the Domain Name. Based on the website, it is clear that Respondent is using the Domain Name as a referral source for travel agents selling cruises. For example, the website states “. . . you agree to be matched up with up to 4 agents and for them to contact you even if your telephone number is on a corporate, state, or the National Do Not Call registry . . . ” and offers users to “Get a Fast free Quote Now”. Such use cannot be considered to be a noncommercial or fair use pursuant to UDRP ¶4(c)(iii).
The Domain Name points to a website containing advertisements for competing cruise ship service providers such as MSC. The website also offers to provide price quotes for competing cruise ship service providers such as Norwegian Cruise Line and Royal Caribbean Cruises. Id. A respondent’s use of a confusingly similar domain name to advertise competing goods and/or services does not constitute a bona fide offering of goods or services under UDRP ¶4(c)(i). See, e.g., Am. Int’l Group, Inc. v. Benjamin, FA 944242 (NAF May 11, 2007).
Respondent is not an authorized reseller of Complainant’s services. Even if Respondent was an authorized reseller of Complainant’s services, however, Respondent would not have a right or legitimate interest in the Domain Name. Other panels have considered the issue of whether an authorized sales or service agent of trademarked goods can use the trademark at issue in its domain name. See, e.g., Experian Information Solutions, Inc. v. Credit Research, Inc., WIPO Case No. D2001-0903 (May 7, 2002). See also Proctor & Gamble Co. v. Hlad, FA 126656 (NAF Nov. 20, 2002) (“[r]espondent, merely a distributor of PUR brand products, has no authorization to use the PUR mark for any trademark purpose, such as use in the domain name”); Alticor Inc. v. amwayproductinfo.com Private Registration c/o DreamHost Web Hosting, FA 0808001220557 (NAF Oct. 8, 2008). In order for such activities to constitute a bona fide offering of goods and services: (1) the respondent must actually be offering the goods or services at issue; (2) respondent must use the site to sell only the trademarked goods; otherwise it could be using the trademark to bait Internet users and then switch them to other goods; (3) the site must accurately disclose the registrant’s relationship with the trademark owner; it may not, for example, falsely suggest that it is the trademark owner, or that the website is the official site, if, in fact, it is only one of many sales agents; and (4) the respondent must not try to corner the market in all domain names that use the mark, thus depriving the trademark owner of reflecting its own mark in a domain name. Experian Information Solutions, Inc., WIPO Case No. D2001-0903; Dakota Alert v. WinterHaven, Inc., FA0812001236721 (NAF January 21, 2009).
Respondent’s conduct fails to satisfy at least two (2) of the four (4) elements of the above test. First, as detailed above, the Domain Name points to a website containing advertisements, and offering to provide cruise quotes, for competing cruise ship service providers; Respondent is not using the website to sell only Complainant’s services. Accordingly, Respondent is baiting Internet users by appropriating the Carnival Mark in the Domain Name and then switching them to non-Complainant services. Second, the website does not accurately disclose the Respondent’s relationship with the Complainant. Rather, it falsely suggests that it is the Complainant. For example, the website contains copyrighted images owned by Complainant, and a lengthy description, a representative portion of which is as follows: “Carnival fun cruises lists the Carnival fun ships and cruises, Carnival Cruise travel and Carnival cruise packages. Find Carnival cruise packages at carnivalfuncruise.com where we compete for your business with Carnival fun cruises.” It is apparent that Respondent has registered and used the Domain Name in a deliberate and unauthorized attempt to free ride on the substantial goodwill in the Carnival Mark. This cannot constitute a bona fide offering of goods or services, even if Respondent is an authorized reseller of Complainant’s services.
In summary, Respondent has no right or legitimate interest in the Domain Name.
C. Respondent has Registered and Used the Domain Name in Bad Faith.
The UDRP lists in the disjunctive several sets of circumstances that constitute evidence of the registration and use of a domain name in bad faith. UDRP ¶4(b). Some such circumstances, as well as other indicia of bad faith, are present in this case.
The requisite bad faith is present where a respondent uses the pertinent domain name to intentionally attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of respondent’s web site. UDRP ¶4(b)(iv). The respondent’s sale of third party goods on domain names that are confusingly similar to the complainant’s trademark, even when the respondent is an authorized reseller of complainant’s goods, constitutes bad faith. See, e.g., Experian Information Solutions, Inc. v. Credit Research, Inc., WIPO Case No. D2001-0903 (May 7, 2002). In this case, Respondent’s website advertises, and offers to provide cruise quotes for, competing cruise ship service providers. See supra at Section V.B. Respondent is commercially benefitting from the sale of these services. The use of a confusingly similar domain name creates a likelihood of confusion with the Carnival Mark as to the source, sponsorship, affiliation or endorsement of the services advertised on Respondent’s site.
Other circumstances showing registration and use of the domain name include respondent’s registration of the domain name primarily for the purpose of disrupting the business of a competitor. UDRP § 4(b)(iii). By advertising services that compete with the Complainant, Respondent is diverting potential customers to Respondent’s website. This constitutes bad faith under UDRP ¶4(b)(iii). See, e.g., Am. Int’l Group, Inc. v. Benjamin, FA 944242 (NAF May 11, 2007).
Finally, a finding of bad faith is required where “[t]here is no plausible explanation for the registration of a domain name other than to trade on the goodwill of the complainant.” Florists’ Transworld Delivery, Inc. v. Shibata Kenyu, Case No. FA0201000103573 (NAF Feb. 25, 2002). In the case at bar, Complainant’s Carnival Mark is arbitrary, fanciful and unique. Moreover, it is the subject of numerous registrations in the United States and around the world. In consideration of these facts, and the manner in which the Domain Name is being used, it seems apparent that Respondent’s incorporation of the mark in the second-level domain for the Domain Name is for the purpose of creating a confusingly similar domain name. This again requires that the Panelist rule in favor of Complainant on the issue of Respondent’s bad faith. See Florists’ Transworld Delivery, Inc. v. Domain Strategy, Inc., Case No. FA0205000113974 (NAF June 27, 2002).
B. Respondent failed to submit a Response in this proceeding.
Complainant Carnival Corporation owns the CARNIVAL mark which it uses in connection with cruise ship services and other goods and services. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its CARNIVAL mark (e.g., Reg. No. 1,489,408 issued May 24, 1988).
Respondent Bill McCoy registered the disputed domain name on May 17, 2006. The disputed domain name resolves to a website that purports to be a referral source to travel agents selling cruises and offers advertisements for competing cruise ship providers.
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 Complainant to 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 submits evidence of its multiple trademark registrations for the CARNIVAL mark with the USPTO (e.g., Reg. No. 1,489,408 issued May 24, 1988). Prior panels have concluded when a mark is registered with the USPTO, the complainant has rights in the mark for the purposes of Policy ¶4(a)(i). See Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office); see also Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶4(a)(i).”). The Panel agrees with these prior findings and concludes Complainant has sufficiently demonstrated its rights in the CARNIVAL mark.
Complainant alleges Respondent’s disputed domain name is confusingly similar to Complainant’s CARNIVAL mark. Prior panels have held the addition of a generic term and a term descriptive of a complainant’s business both fail to distinguish a disputed domain name from a mark. See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶4(a)(i)). Previous panels have also determined the addition of a generic top-level domain (“gTLD”), such as “.com,” is irrelevant to a Policy ¶4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶4(a)(i) analysis). In the instant case, Respondent has added both the generic term “fun” and the descriptive term “cruise,” along with the gTLD “.com.” Therefore, this Panel finds Respondent’s <carnivalfuncruise.com> domain name is confusingly similar to Complainant’s CARNIVAL mark.
The Panel finds Policy ¶4(a)(i) satisfied.
It is well established a complainant must first present a prima facie case the respondent lacks rights and legitimate interests in a disputed domain name before the burden of proof will shift, requiring the respondent to submit evidence that it does have rights or legitimate interests. See Towmaster, Inc. v. Hale, FA 973506 (Nat. Arb. Forum June 4, 2007) (“Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.”). In this case, the Panel finds Complainant has sufficiently established its required prima facie case. Respondent has failed to submit any response to these proceedings. Past panels have held where a respondent did not submit a response, the respondent was deemed to have no rights or legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). Out of an abundance of caution, this Panel elects to consider the evidence on record before making a determination as to whether Respondent has any rights or legitimate interests in the disputed domain name.
Previous panels have held where the WHOIS information fails to identify a respondent as commonly known by the disputed domain name, the respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶4(c)(ii). See Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”); see also Am. Online, Inc. v. World Photo Video & Imaging Corp., FA 109031 (Nat. Arb. Forum May 13, 2002) (finding that the respondent was not commonly known by <aolcamera.com> or <aolcameras.com> because the respondent was doing business as “Sunset Camera” and “World Photo Video & Imaging Corp.”). Here, the WHOIS information identifies the registrant of the <carnivalfuncruise.com> domain name as “Bill McCoy.” In accordance with the decisions of previous panels, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶4(c)(ii).
Complainant alleges Respondent is using the disputed domain name to resolve to a website which purports to be a referral source to travel agents selling cruises and offers advertisements for competing cruise ship providers. Prior panels have concluded where a respondent uses a disputed domain name to redirect Internet users away from a complainant and toward the complainant’s competitors, respondent is not using the disputed domain name in connection with a bona fide offering of goods and services pursuant to Policy ¶4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii). See Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006) (finding that the respondent’s use of domain names confusingly similar to the complainant’s WAL-MART mark to divert Internet users seeking the complainant’s goods and services to websites competing with the complainant did not constitute a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii)); see also Skyhawke Techs., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds this use of the disputed domain name does not constitute a bona fide offering of goods or services under Policy ¶4(c)(i), or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”). This Panel agrees and finds accordingly.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims bad faith is shown where the registration and use of the disputed domain name was primarily for the purpose of disrupting the business of a competitor. Complainant claims Respondent is diverting potential customers to Respondent’s website by advertising services competing with Complainant. Prior panels have held such behavior constitutes bad faith registration and use under Policy ¶4(b)(iii). See David Hall Rare Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶4(b)(iii) because respondent used the disputed domain name to advertise goods and services of complainant’s competitors, thereby disrupting the complainant’s business); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites). The Panel agrees and finds Respondent has demonstrated bad faith pursuant to Policy ¶4(b)(iii).
Complainant argues the requisite bad faith is present where Respondent registered and is using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s resolving website. Complainant claims Respondent’s website advertises, and offers to provide quotes for, competing cruise ship providers. Complainant further claims Respondent is commercially benefitting from the sale of these services. Prior panels have held, in situations comparable to this, the respondent has the necessary bad faith under Policy ¶4(b)(iv). See Asbury Auto. Group, Inc. v. Tex. Int’l Prop. Assocs., FA 958542 (Nat. Arb. Forum May 29, 2007) (finding that the respondent’s use of the disputed domain name to advertise car dealerships that competed with the complainant’s business would likely lead to confusion among Internet users as to the sponsorship or affiliation of those competing dealerships, and was therefore evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv)); see also MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme). The Panel finds accordingly.
The Panel finds Policy ¶4(a)(iii) 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 <carnivalfuncruise.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: April 14, 2011
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