Holland America Line N.V. v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA2101001928259
Complainant is Holland America Line N.V. (“Complainant”), represented by Jaime Rich Vining of Friedland Vining, P.A., Florida, USA, Respondent is Domain Administrator / Fundacion Privacy Services LTD (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <holandamerica.com>, registered with Media Elite Holdings Limited.
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 Forum electronically on January 14, 2021; the Forum received payment on January 14, 2021.
On January 14, 2021, Media Elite Holdings Limited confirmed by e-mail to the Forum that the <holandamerica.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 January 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 4, 2021 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@holandamerica.com. Also on January 15, 2021, 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 February 9, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, Holland America Line N.V., has operated one of the world’s leading cruising companies for 147 years. Complainant has rights in the HOLLAND AMERICA CRUISES and HOLLAND AMERICA LINE marks (hereafter the “HOLLAND AMERICA” marks) through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. 995,488, registered Oct. 8, 1974; Reg. 2,326,802, registered Mar. 7, 2000). Respondent’s <holandamerica.com> domain name is confusingly similar to Complainant’s HOLLAND AMERICA marks, only differing by the removing one “L” from the word “HOLLAND” and adding the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <holandamerica.com> domain name as it is not commonly known by the disputed domain name and is not an authorized user or licensee of any HOLLAND AMERICA mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent uses a typosquatted version of Complainant’s mark to redirect Internet traffic.
Respondent registered and uses the <holandamerica.com> domain name in bad faith. Respondent’s registration of the disputed domain name disrupts Complainant’s business, and leads to a likelihood of confusion as to the sponsorship and affiliation of the disputed domain. Further, Respondent’s typosquatting is evidence of bad faith. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the HOLLAND AMERICA marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Holland America Line N.V., has operated one of the world’s leading cruising companies for 147 years. Complainant has rights in the HOLLAND AMERICA CRUISES and HOLLAND AMERICA LINE marks (hereafter the “HOLLAND AMERICA” marks) through registration with the “USPTO (e.g., Reg. 995,488, registered Oct. 8, 1974; Reg. 2,326,802, registered Mar. 7, 2000). Respondent’s <holandamerica.com> domain name is confusingly similar to Complainant’s HOLLAND AMERICA marks.
Respondent registered the <holandamerica.com> domain name on July 18, 2001.
Respondent lacks rights and legitimate interests in the <holandamerica.com> domain name. Respondent uses a typosquatted version of Complainant’s mark to redirect Internet traffic.
Respondent registered and uses the <holandamerica.com> domain name in bad faith.
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 has rights in the HOLLAND AMERICA marks under Policy ¶ 4(a)(i) through registration with the USPTO. Registration of a mark with a trademark agency such as the USPTO is generally sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018)).
Respondent’s <holandamerica.com> domain name is confusingly similar to Complainant’s HOLLAND AMERICA marks, only differing by the removal of one “L” in the word “HOLLAND” and deleting the words “CRUISES” or “LINE,” and adding the “.com” gTLD.
Respondent lacks rights and legitimate interests in the <holandamerica.com> domain name as it is not commonly known by the disputed domain name and is neither an authorized user or licensee of any HOLLAND AMERICA mark. When no response is submitted, relevant WHOIS information may be used to demonstrate a Respondent is not commonly known by a disputed domain me under Policy ¶ 4(c)(ii). See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel notes that the WHOIS information merely lists a privacy service as registrant. In light of Respondent’s failure to provide any evidence to the contrary, the Panel finds there is no basis to find Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).”). Here, the WHOIS information shows that the Respondent utilized a privacy service when registering the disputed domain name. Additionally, there is no evidence that disproves Complainant’s contention that it never authorized Respondent to use any of the HOLLAND AMERICA marks. Therefore, Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent does not use the <holandamerica.com> domain name in connection with a bona fide offer of goods or services or for any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). Instead, Respondent’s website appears to be virtually devoid of content, only trying to entice Internet users to download a Google Chrome extension upon arrival. Failing to make active use of a disputed domain name is evidence of a lack of rights and legitimate interests. See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”).
Respondent’s act of typosquatting is further evidence of Respondent’s lack of rights and legitimate interests in the <holandamerica.com> domain name. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
Respondent registered and uses the <holandamerica.com> domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv). Respondent’s website appears to be virtually devoid of content but for a prompt to download a browser extension. Respondent’s registration disrupts Complainant’s business and likely leads to commercial gain for Respondent. See Love City Brewing Company v. Anker Fog / Love City Brewing Company, FA 1753144 (Forum Nov. 27, 2017) (Finding that Respondent disrupts Complainant’s business by pointing Internet users to an expired webpage. This may create the perception that Complainant is closed, never existed, or is not a legitimate business. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iii).).
Also, Respondent engaged in typosquatting when registering and using the <holandamerica.com> domain name which is evidence of bad faith under Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (typosquatting is the deliberate misspelling of the mark of another in a domain name and is evidence of bad faith in the registration and use of a domain name.)
Respondent had actual knowledge of Complainant’s rights in the HOLLAND AMERICA mark prior to registering and using the <holandamerica.com> domain name. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <holandamerica.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 22, 2021
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