AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L. v. Aida Ltd., Stefan Miersen
Case No. D2008-1132
1. The Parties
Complainant is AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L., Rostock, Germany, represented by Selting und Baldermann, Germany.
Respondent is Aida Ltd., Stefan Miersen, London, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <aida.travel> is registered with Namesbeyond.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center“) on July 24, 2008. On July 28, 2008, the Center transmitted by email to Namesbeyond.com a request for registrar verification in connection with the domain name at issue. On August 11, 2008, after a number of prompting emails from the Center, Namesbeyond.com transmitted by email to the Center its verification response, confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy“), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules“), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules“).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 13, 2008. In accordance with the Rules, paragraph 4(a), the Center re-notified Respondent of the Complaint on September 4, 2008, using additional email contact information of Respondent, found on the website at the disputed domain name. In accordance with the Rules, paragraph 5(a), the due date for Response was September 24, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on September 25, 2008.
The Center appointed Richard G. Lyon as the sole panelist in this matter on October 8, 2008. The Panel finds that it was properly constituted and has jurisdiction over this proceeding. The Panel has submitted his Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Complainant has established the following facts by competent evidence.
Complainant operates a major cruise line that had annual turnover exceeding €400 million in 2006. Complainant operates cruises in Europe, the United States of America, the Caribbean, and Asia. Complainant holds German and European Community trademark registrations for AIDA for, among other things, travel services, first registered in 1998 (with priority from 1997) and 2008 (with priority from 2005) respectively, and uses the mark actively to promote its cruises and other products and services. Complainant‘s principal website is “www.aida.de“, which is available in at least German and English.
Respondent registered the disputed domain name in August 2007. When the Panel entered the disputed domain name into his browser, he received a standard error message that “the website cannot be found.” Complainant has submitted photocopies of screen shots obtained from the disputed domain name that indicate use for links to various travel services and travel-related search engines. Although these screen shots give Respondent‘s address as London, United Kingdom of Great Britain and Northern Ireland, the text on the site is in the German language.
5. Parties' Contentions
A. Complainant
Complainant contends as follows:
The disputed domain name is identical to Complainant‘s registered AIDA mark except for the addition of the generic top-level domain name “.travel”. Complainant has never authorized Respondent to use its mark, Respondent has never been known by the name “Aida”, and Respondent‘s use for services competitive with those offered by Complainant is not legitimate under paragraph 4(a)(ii) of the Policy. Establishing a website using another‘s mark does not ipso facto give Respondent rights in the disputed domain name or make out a defense under paragraph 4(b)(ii) of the Policy. Respondent‘s use of the German language on its website indicates that Respondent was aware of Complainant and its mark when it established its website at the disputed domain name. Respondent registered and has used the disputed domain name to compete with Complainant; its use includes links to Complainant‘s competitors.
B. Respondent
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Complainant bears the burden of proof on each of the elements set out in paragraph 4(a) of the Policy. Unlike civil litigation in the United States of America, Respondent's default does not automatically result in judgment for Complainant and does not constitute an admission of any pleaded matter. Kellwood Company v. Onesies Corporation,
WIPO Case No. D2008-1172; WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Overview”), paragraph 4.6, Consensus View.
A. Identical or Confusingly Similar to a Mark in which Complainant has Rights
Complainant has shown that it holds German and European Community trademark rights for AIDA in connection with travel services. The disputed domain name is identical to the mark except for the addition of the generic top-level domain name, which is of no moment under the Policy. Complainant has established this Policy element.
B. Rights or Legitimate Interests
Complainant has made a prima facie case that Respondent lacks rights and legitimate interest in the disputed domain name by showing that Complainant has never authorized Respondent to use its mark and that Respondent has never been known by the disputed domain name other than in connection with the website it maintains there. Simply copying the mark into the disputed domain name or the business name used to register the site does not make out a right or legitimate interest. To establish a defense under paragraph 4(c)(ii) of the Policy, Respondent must show that it has been “commonly known” by the name independently of the business it has posted at the website established with the disputed domain name.
It is possible that Respondent has generally been known as Aida Travel Services, Ltd., but there is nothing in the record to indicate that or any connection with “Aida“ other than at the disputed domain name. Well-established Policy precedent requires Respondent to come forward with proof, if it exists, of facts establishing a right or legitimate interest to overcome Complainant‘s prima facie case.1 If Respondent used its corporate name for its business generally prior to registering the disputed domain name it could easily have demonstrated that fact. Instead, Respondent has stood silent, and there is nothing in the record from which the Panel can find a right or legitimate interest. Complainant has established this element of the Policy.
C. Registered and Used in Bad Faith
For similar reasons, Complainant has proven that Respondent registered and used the disputed domain name in bad faith, thus establishing the final Policy element. From the evidence in the record, Respondent used the disputed domain name to maintain a site offering the same services as Complainant, with links to several of Complainant‘s competitors. This is classic evidence of both registration and use in bad faith. As Complainant notes, Respondent‘s choice of the German language is telling evidence that Respondent knew of Complainant and its mark prior to registering the disputed domain name and sought a free ride on the renown of the mark.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <aida.travel> be transferred to Complainant.
