National Arbitration Forum

 

DECISION

 

Carnival Plc v. Dave Jackson

Claim Number: FA0706000997916

 

PARTIES

Complainant is Carnival Plc (“Complainant”), represented by Brett A. August, of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, 311 South Wacker Drive, Suite 5000, Chicago, IL 60606.  Respondent is Dave Jackson (“Respondent”), 785 High Pines Dr, Naples, FL 34103.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <queen-elizabeth-2.com>, registered with Schlund+Partner Ag.

 

PANEL

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.

 

Clive Elliott as Panelist.

 

PROCEDURAL HISTORY

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 6, 2007, Schlund+Partner Ag confirmed by e-mail to the National Arbitration Forum that the <queen-elizabeth-2.com> domain name is registered with Schlund+Partner Ag and that Respondent is the current registrant of the domain name.  Schlund+Partner Ag has verified that Respondent is bound by the Schlund+Partner 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 June 12, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 2, 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@queen-elizabeth-2.com by e-mail.

 

A timely Response was received on July 2, 2007.  The Response was however deficient under ICANN Rule 5 as it was not received in hard copy. 

 

On July 7, 2007 pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Clive Elliott as Panelist.

 

RELIEF SOUGHT

Complainant requests that the disputed domain name be transferred from Respondent to Complainant.

 

PARTIES’ CONTENTIONS

A. Complainant

 

Complainant and its related companies and subsidiaries comprise the largest cruise company and one of the largest leisure travel companies in the world.  Complainant holds some of the most recognisable brands in ocean-going travel, including Carnival Cruise Lines, Princess Cruises, Holland America Line and Cunard Line.  It operates more than 80 cruise ships having a total capacity of more than 140,000 passengers. 

One of Complainant's most prestigious brands is the Cunard Line.  Cunard's fleet has contained some of the most famous ocean liners in history, including the Lusitania (1907-15), the Mauretania (1907-1935), the Queen Mary (1936-1967) and the Queen Elizabeth (1940-1972).  In 1969, Cunard launched the Queen Elizabeth 2 (commonly known as the QE2) as a replacement for the out-going Queen Mary and Queen Elizabeth.  After approximately 40 years of service, the Queen Elizabeth 2 is now regarded as the most famous ocean liner in the world.

Complainant is the owner of numerous trademark registrations and pending applications throughout the world for the marks QUEEN ELIZABETH 2 and QE2 in relation to a wide variety of goods and services.

Complainant asserts that as a result of its long and extensive use of the QUEEN ELIZABETH 2 and QE2 marks, as well as the substantial sums Complainant has spent on advertising and promoting the marks, the QUEEN ELIZABETH 2 and QE2 marks have become famous and represent a valuable goodwill owned by Complainant.  

Complainant contends that Respondent resides in Naples, Florida, and is not affiliated or related in any way to Complainant, and is not licensed or authorized to use the QUEEN ELIZABETH 2 or QE2 marks.  According to the WHOIS records, the disputed domain name was registered on August 8, 2006, long after Carnival Plc's adoption, use and registration of the QUEEN ELIZABETH 2 and QE2 marks, and long after these marks became famous.

Complainant further contends that Respondent currently uses the disputed domain name for a website that contains links and information about Catalina Island in California.  The site provides links to sites relating to vacations on Catalina and cruises to Catalina, as well as general travel-related websites.

Complainant alleges that as Complainant is engaged in the travel industry, these sites advertise and sell products and services in competition with Complainant.  Thus, it submits that Respondent has registered and is using the disputed domain name unlawfully to divert and siphon off visitors seeking Complainant's websites associated with the Queen Elizabeth 2. 

 

B. Respondent

 

In an e-mail communication to the National Arbitration Forum on July 2, 2007 Respondent states:

 

“I have no interest in the domain name, and am not the first owner of the domain name.  I purchased it when I saw it available from an expired domain name company.  This domain has been registered before.

 

Again - I have no interest in the domain.  Your party may have it.

There is no need for any further proceeding.”

 

 

FINDINGS

For the reasons set out below the Panel is of the view that by virtue of Respondent’s unequivocal consent to the transfer of the disputed domain name that relief be granted and the disputed domain name transferred to Complainant.

 

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 sets out three elements that need to be proved under the Policy.  However, for the reasons set out below, such analysis is not required in this case. 

 

 

DECISION

As noted above, although Respondent’s electronic submission was received in a timely manner, it failed to submit a hard copy as required by ICANN Rule 5.  Therefore the Panel has sole discretion as to the amount of weight given to the Response.  See Telstra Corp. v. Chu, D2000-0423 (WIPO June 21, 2000) (finding that any weight to be given to the lateness of the response is solely in the discretion of the panelist). 

 

The Panel does however have discretion to accept the Response.  See Bd. of Governors of the Univ. of Alberta v. Katz, D2000-0378 (WIPO June 22, 2000) (finding that a panel may consider a response which was one day late, and received before a panelist was appointed and any consideration made); see also Gaiam, Inc. v. Nielsen, FA 112469 (Nat. Arb. Forum July 2, 2002) (“In the interest of having claims decided on the merits and not by default and because Complainant has not been prejudiced in the presentation of its case by the late submission, Respondent’s opposition documents are accepted as timely.”).

 

While certain panels have declined to accept non-complying submissions or evidence this is a situation where the e-mail communication with the Forum is both directly relevant and before the parties and the Panel.  For this reason it is admitted and taken into account by the Panel.

 

Consent to Transfer the Subject Domain Name

 

Respondent’s Response clearly indicates that Respondent has “no interest in the [disputed] domain name.”  The Panel finds that this Response indicates that Respondent does not contest any of Complainant’s allegations regarding the <queen-elizabeth-2.com> domain name.  Rather, it appears that Respondent has consented to judgment in favor of Complainant and authorized the immediate transfer of the subject domain name through the language of the Response, which includes “I have no interest in the domain.  Your party may have it.” 

 

The Panel finds that in a circumstance such as this, where Respondent has unequivocally consented to the transfer of the disputed domain name, it should forego the traditional UDRP analysis and order the immediate transfer of the domain name.  See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).

 

Having so found the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <queen-elizabeth-2.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Clive Elliott, Panelist
Dated: July 23, 2007

 

 

 

 

 

 

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