Carnival Plc v. Norbert Kahl
Claim Number: FA0706000997909
Complainant is Carnival Plc (“Complainant”), represented by Brett
A. August, of Pattishall, McAuliffe, Newbury, Hilliard
& Geraldson LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <queenelizabeth2.info>, registered with Go Daddy.com, Inc.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 1, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 4, 2007.
On June 4, 2007, Go Daddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <queenelizabeth2.info> domain name is registered with Go Daddy.com, Inc. and that Respondent is the current registrant of the name. Go Daddy.com, Inc. has verified that Respondent is bound by the Go Daddy.com, Inc. 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 June 5, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 25, 2007 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 postmaster@queenelizabeth2.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 27, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 <queenelizabeth2.info> domain name is identical to Complainant’s QUEEN ELIZABETH 2 mark.
2. Respondent does not have any rights or legitimate interests in the <queenelizabeth2.info> domain name.
3. Respondent registered and used the <queenelizabeth2.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Carnival Plc, is a large cruise company and one of the largest leisure travel companies in the world. In connection with the provision of these services, Complainant has registered a number of trade and service marks with the United States Patent and Trademark Office (“USPTO”) including the QUEEN ELIZABETH 2 mark (Reg. No. 1,501,896 issued August 30, 1988).
Respondent registered the <queenelizabeth2.info> domain name on March 9, 2007. The disputed domain name resolves to a webpage offering Internet users numerous links to commercial websites, some of which directly compete with Complainant’s business.
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 asserts rights in the QUEEN ELIZABETH 2 mark through registration of the mark with the USPTO. The Panel finds that Complainant’s timely registration and subsequent use of the QUEEN ELIZABETH 2 mark sufficiently its establishes rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Ameridream, Inc. v. Russell, FA 677782 (Nat. Arb. Forum May 24, 2006) (holding that the complainant’s registration of the AMERIDREAM mark with the USPTO established its rights in the mark pursuant to Policy ¶ 4(a)(i)).
The disputed domain name contains Complainant’s mark in its entirety, eliminates the spaces between the words and the number in the mark, and adds the generic top-level domain (“gTLD”) “.info.” The Panel finds that the elimination of spaces and addition of a gTLD fails to sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding that the respondent’s domain name <charlesjourdan.com> is identical to the complainant’s marks); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights or
Legitimate Interests
In instances where Complainant has made
a prima facie case in support of its
allegations, the burden shifts to Respondent to set forth concrete evidence
indicating that it has rights or legitimate interests in accordance with Policy
¶ 4(a)(ii). See SEMCO Prods.,
LLC v. dmg world media (
The disputed domain name resolves to a website featuring links to commercial, third-party websites, some of which directly compete with Complainant’s business. The Panel finds that Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Hale Prods., Inc. v. Hart Int’l Inc., FA 198031 (Nat. Arb. Forum Dec. 2, 2003)(finding that the respondent had no rights or legitimate interests in the <jawsoflife.com> domain name because the respondent was diverting Internet users to the website of one of the complainant’s competitors); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
Complainant asseverates that Respondent is not generally or commonly known by the disputed domain name. Respondent’s WHOIS registration information lists “Norbert Kahl” as the registrant of the <queenelizabeth2.info> domain name. Lacking evidence pointing to a contrary conclusion, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Gambro AB v. Family Health & Wellness Ctr., D2001-0447 (WIPO May 25, 2001) (finding that the respondent did not submit any evidence to support its suggestion that its employee was known by the nickname “Gambro”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website featuring links to competitors’ websites. The Panel finds that Respondent’s use disrupts Complainant’s business and evinces registration and use in bad faith pursuant to Policy ¶ 4(b)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Presumably, Respondent enjoys financial benefit from its
diversionary use of the disputed domain name by earning “click-through”
fees. Further, unwitting Internet users
are likely to become confused as to the source and affiliation of the resulting
websites. The Panel finds that
Respondent’s use of the disputed domain name amounts to an attraction for
commercial gain, which suggests registration and use in bad faith pursuant to
Policy ¶ 4(b)(iv).
See Allianz of Am. Corp. v. Bond, FA
680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use
under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users
searching for the complainant to its own website and likely profiting from
click-through fees); see also Associated Newspapers Ltd. v.
Domain Manager, FA 201976 (Nat. Arb. Forum
Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain
name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain
name provided links to Complainant's competitors and Respondent presumably
commercially benefited from the misleading domain name by receiving
‘click-through-fees.’”).
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 <queenelizabeth2.info> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: July 2, 2007
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