Viking River Cruises, Inc. and Viking River Cruises (Bermuda) Ltd v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2003001889799
Complainant is Viking River Cruises, Inc. and Viking River Cruises (Bermuda) Ltd (“Complainant”), represented by Beth M. Goldman of Orrick, Herrington & Sutcliffe LLP, California, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cvikingcruises.com>, registered with GoDaddy.com, LLC.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 25, 2020; the Forum received payment on March 25, 2020.
On March 27, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <cvikingcruises.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 31, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 20, 2020 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@cvikingcruises.com. Also on March 31, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 Forum transmitted to the parties a Notification of Respondent Default.
On April 24, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
Complainant, Viking River Cruises, Inc. and Viking River Cruises (Bermuda) Ltd., owns and operates one of the world’s leading river and ocean cruise lines. Complainant provides destination-focused cruise itineraries serving customers and ports in Asia, Europe, Africa, Australia, and the Americas. In 2019, Complainant was rated the #1 River Cruise Line in Cruise Critic’s Cruisers’ Choice Awards. Complainant has rights in the VIKING CRUISES mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,495,438, registered Mar. 11, 2014). Respondent’s <cvikingcruises.com> domain name is confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s VIKING CRUISES mark, adding only a “c” before “viking” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <cvikingcruises.com> domain name. Respondent is not licensed or authorized to use Complainant’s VIKING CRUISES marks and is not known by the disputed domain name. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain to pass off as Complainant and redirect users to websites of Complainant’s competitors. Respondent fails to make an active use of the disputed domain name.
Respondent registered and uses the <cvikingcruises.com> domain name in bad faith. Respondent disrupts Complainant’s business by hosting link to Complainant’s competitors. Additionally, by registering a domain name that incorporates a minor typographical error of Complainant’s VIKING CRUISES mark, Respondent is engaged in typosquatting. Finally, Respondent registered the disputed domain name with actual and/or constructive knowledge of Complainant’s rights in the VIKING CRUISES mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Viking River Cruises, Inc. and Viking River Cruises (Bermuda) Ltd (“Complainant”), of Woodland Hills, CA, USA. Complainant is the owner of the domestic and international registrations for the mark VIKING CRUISES and variations thereof constituting the family of Viking Cruise marks. Complainant has continuously used its VIKING RIVER CRUISE mark since 1997 and its VIKING CRUISES mark since at least as early as 2014 in connection with its provision of cruise and travel services. Complainant also has advertised, promoted, and rendered services via the internet since 1998 at its website <vikingcruises.com>.
Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), of Panama City, Panama. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes Respondent registered the <cvikingcruises.com> domain name on or about February 7, 2020.
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."
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.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant asserts rights in the VIKING CRUISES mark based upon its registration of the mark with the USPTO (e.g., Reg. No. 4,495,438, registered Mar. 11, 2014). Registration of a mark with the USPTO is generally sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i)”). Complainant provides evidence of registration of the VIKING CRUISES mark with the USPTO. The Panel here finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <cvikingcruises.com> domain name is confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s VIKING CRUISES mark, adding only a “c” and the “.com” gTLD. The addition of a single letter and a gTLD may not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Google, Inc. v. DktBot.org, FA 286993 (Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i)”); see also Starwood Capital Grp. Global LLC v. Resort Realty, FA 1043061 (Forum Sept. 6, 2007) (“Furthermore, the addition of the generic top-level domain ‘.com’ does nothing to eliminate the confusing similarity, as a top-level domain is a requirement for all domain names”). The Panel here finds that the disputed domain name is confusingly similar to the VIKING CRUISES mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that 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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <cvikingcruises.com> domain name because Respondent is not licensed or authorized to use Complainant’s VIKING CRUISES mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names”). Additionally, lack of authorization to use a mark can constitute a further showing that a respondent lacks rights in a mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record notes “Carolina Rodrigues/Fundacion Comercio Electronico” as the registrant and no information in the record suggests that Complainant has authorized Respondent to use the VIKING CRUISES mark in any way. The Panel here finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to pass itself off as Complainant and display links to Complainant’s competitors. Using a domain name to display links to competing third parties is not a bona fide offering of goods or services or a legitimate noncommercial fair use pursuant to Policy ¶¶ 4(c)(i) or (iii). See Walgreen Co. v. Privacy protection service - whoisproxy.ru, FA 1785188 (Forum June 10, 2018) (“Respondent uses the <walgreensviagra.net> domain name to pass itself off as Complainant and display links to a website offering products similar to those offered by Complainant. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii)”). Here, Complainant has provided screenshots of Respondent’s web page which displays links to competing third parties. The Panel here finds that Respondent’s use does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent has registered and uses the <cvikingcruises.com> domain name in bad faith. Complainant alleges Respondent attempts to disrupt Complainant’s business by offering links to competing third-party sites. Use of a domain name to host links to competitors of a complainant may demonstrate bad faith in use and registration. See Ontel Products Corporation v. waweru njoroge, FA 1762229 (Forum Dec. 22, 2017) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iii) and (iv) through the respondent’s registration and use of the infringing domain name to reference the complainant’s products and offer competitive and/or counterfeit products). Complainant claims Respondent hosted hyperlinks which directed internet users to competing third party sites. Complainant provides screenshots of such links on Respondent’s web page. The Panel here finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii) and (iv).
Complainant also contends that Respondent engages in typosquatting. Misspelling of a complainant’s mark in order to commercially benefit from a common typing error made by internet users can be evidence of bad faith per Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name”). Complainant asserts that Respondent merely adds the letter “c” in front of the VIKING CRUISES mark. Complainant notes that the letter “c” is next to the letter “v” on a QWERTY keyboard and so it is likely for an internet user to mistakenly type Respondent’s domain name rather than Complainant’s. The Panel here finds that Respondent’s addition of a single letter in front of Complainant’s mark constitutes typosquatting, further evincing bad faith by Respondent per Policy ¶ 4(a)(iii).
Finally, Complainant argues that Respondent had actual and/or constructive knowledge of Complainant’s rights in the VIKING CRUISES mark when registering the disputed domain name. Actual knowledge or a complainant’s rights in a mark at the time of registration of a domain name can be shown to be bad faith per Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it”). Actual knowledge of a mark can be established by showing the fame and notoriety of the mark. See Snap Inc. v. Deepika Priyadarshinie / entsl, FA 1788600 (Forum June 21, 2018) (finding the respondent had actual knowledge of the complainant and its rights in the claimed mark due to the fame of the mark, established by the complainant’s submission of numerous articles regarding the success of the complainant’s product). Complainant argues that Respondent must have had actual knowledge of Complainant’s rights due to the fame of the VIKING CRUISES mark, Respondent’s use of the mark in its entirety, and Respondent’s web page which included links to competing third parties. The Panel here finds that Complainant has provided sufficient unrefuted evidence to support the conclusion that Respondent actually knew of Complainant’s mark and thus engaged in bad faith registration and use under Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <cvikingcruises.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: May 8, 2020
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