Carnival Corporation v. Bernard Christianctus
Claim Number: FA2201001982390
Complainant is Carnival Corporation ("Complainant"), represented by Jaime Rich Vining of Friedland Vining, P.A., Florida, USA. Respondent is Bernard Christianctus ("Respondent"), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <carnlval.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 28, 2022; the Forum received payment on January 28, 2022.
On January 29, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by email to the Forum that the <carnlval.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 31, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@carnlval.com. Also on January 31, 2022, 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 Forum transmitted to the parties a Notification of Respondent Default.
On February 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a Panamanian corporation with a principal place of business in Miami, Florida. Complainant owns and operates Carnival Cruise Line, the world's largest cruise company. Complainant's fleet of 87 ships serves nearly 11.5 million guests annually, representing about 50% of the global cruise market. Complainant has used the CARNIVAL mark in connection with its services for many years, and owns longstanding United States trademark registrations for CARNIVAL in standard character form, along with registrations in many other jurisdictions. Complainant asserts that the CARNIVAL mark has become famous as a result of extensive use and marketing efforts, and that it has been recognized as such in prior proceedings. See Carnival Corp. v. SeaEscape Casino Cruises, Inc., 74 F. Supp. 2d 1261, 1270 (S.D. Fla. 1999) (referring to CARNIVAL mark as famous); Carnival Corporation v. Can Oztoker, FA 1739047 (Forum Aug. 15, 2017) (same).
Respondent registered the disputed domain name <carnlval.com> via a privacy registration service in July 2021. The domain name does not resolve to a website. However, Complainant states that it is being used to impersonate Complainant in email messages sent to potential employees as part of a fraudulent phishing scheme. The email messages purport to be sent from "Carnival Cruise Line" and include Complainant's logo, physical address, email address, and website. Complainant states that Respondent is not commonly known by the disputed domain name and is not authorized or licensed to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <carnlval.com> is confusingly similar to its CARNIVAL mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <carnlval.com> corresponds to Complainant's registered CARNIVAL trademark, but for the substitution of a letter "L" for the letter "I" and the addition of the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Allegheny Technologies, Inc. v. Ashley Rumsey, FA 1981327 (Forum Feb. 21, 2022) (finding <atlmetals.com> confusingly similar to ATI METALS); Enterprise Holdings, Inc. v. Faith Casto / Gegety Inc, FA 1936989 (Forum Apr. 14, 2021) (finding <enterpriseholdlngs.com> confusingly similar to ENTERPRISE HOLDINGS); Carnival Corp. v. Fred Tapper, FA 1894692 (Forum May 28, 2020) (finding <carnival-corp.com> confusingly similar to CARNIVAL). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to impersonate Complainant in connection with a fraudulent phishing scheme. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Takeda Pharmaceutical Company Ltd. v. H R / Bryant Rashaad, FA 1937230 (Forum Apr. 21, 2021) (finding lack of rights or interests in similar circumstances); Allegheny Technologies, Inc. v. Ashley Rumsey, supra (same); Carnival Corp. v. Fred Tapper, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register a domain name corresponding to Complainant's famous mark, but for a typographical substitution, and the sole apparent use of the domain name has been in connection with a fraudulent phishing scheme targeted at potential employees of Complainant. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Takeda Pharmaceutical Company Ltd. v. H R / Bryant Rashaad, supra (finding bad faith in similar circumstances); Carnival Corp. v. Fred Tapper, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <carnlval.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 28, 2022
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