The Complainant is AIDA Cruises German Branch of Società di Crociere Mercurio S.r.L. of Germany, represented by Attorneys at Law Selting + Baldermann, Germany.
The Respondent is Stanislaw Herman, Biuro Pomocy Adwokackiej i Pat, of Poland.
The disputed domain name <aidakreuzfahrt.com> is registered with Key-Systems GmbH dba domaindiscount24.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 2, 2008. On September 3, 2008, the Center transmitted by email to Key-Systems GmbH dba domaindiscount24.com a request for registrar verification in connection with the disputed domain name. On September 4, 2008, Key-Systems GmbH dba domaindiscount24.com transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 10, 2008, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on September 15, 2008. On September 23, 2008, the Center notified the Complainant that the Registration Agreement for the disputed domain name was in Polish and requested that the Complainant elect between providing evidence of an agreement with Respondent to use English as the language of the proceedings, or submitting a Polish translation of the Complaint, or making a request that the proceedings be conducted in English. The Complainant submitted a translation of the Complaint into Polish. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 the Respondent of the Complaint in Polish and English, and the proceedings commenced on October 28, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 17, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 19, 2008.
The Center appointed Natasha Lisman as the sole panelist in this matter on December 5, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
In accordance with paragraph 11(a) of the Rules, the language of the registration agreement here, Polish is presumptively the language of the proceedings, but the Panel has the authority to determine otherwise. In view of the fact that the use of Polish would be solely for the Respondent's benefit and the Respondent has chosen not to respond despite being advised of the Complaint in both Polish and English and also being provided an opportunity to object to English as the language of proceedings, while English was the Complainant's initial choice, the Panel has determined that English is the appropriate language for the decision.
The Complainant operates cruises in Europe, the United States, the Caribbean, and Asia and is a market leader in the cruise industry in Germany. It is the owner of a trademark “aida” registered in Germany since 1997 and also holds the rights to the registered EC Trademark AIDA.
The Respondent is the registrant of record of the disputed domain name. Apart from what can be inferred from his name, Stanislaw Herman, which in Polish is a male name, and his apparent affiliation with an organization or entity in Nysa, Poland called Biuro Pomocy Adwokackiej i Pat (Office of Legal and Patent Services)1, nothing is known about the Respondent.
The Complainant contends that the disputed domain name <aidakreuzfahrt.com> is identical or confusingly similar to its trademarks “aida” and AIDA. The Complainant argues that the addition of the suffix “kreuzfahrt” to “aida” should disregarded because it means “cruise” in German and is solely descriptive of the services the Complainant offers under its trademark and of the information and arrangements that can be obtained through the sponsored links displayed on the website to which the disputed domain name resolves.
The Complainant further contends that the Respondent has no rights or legitimate interest in respect to the disputed domain name because it has not obtained a license or any other permission to use the “aida” trademark from the Complainant and the sole use he makes of the disputed domain name on his website is to provide hyperlinks to commercial websites related to travel topics, including the websites of the Complainant's competitors. Such use, according to the Complainant, demonstrates not only lack of any non commercial or legitimate commercial interest, but also bad faith, on the Respondent's part. The Complainant cites the facts that the disputed domain name is registered with a German registrar and that the content of the Respondent's website is in German and concerns the Complainant's business as a compelling inference that the Respondent was well aware of the Complainant's trademark and, more broadly, that he registered and was using the domain name in bad faith.
The Respondent did not reply to the Complainant's contentions.
Pursuant to Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the domain name:
(i) That the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) That Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) That Respondent has registered and is using the domain name in bad faith.
The Complainant owns German and EC registrations for the mark “aida” or AIDA, respectively, which supports its claim of rights in the mark. Given that the disputed domain name combines the mark with another term, the Panel cannot agree with the Complainant's position that the disputed domain and its mark are identical. The question, then, is whether the domain name is confusingly similar to the mark. The Panel finds that the answer to this question is not simple. Neither the content of the Respondent's website nor the nature of the Complainant's business can be taken into account in making the determination of confusing similarity. “The test of confusing similarity under the Policy is confined to a comparison of the disputed domain name and the name or trademark alone[…]” Telstra Corporation Limited v. Mandino Pty Ltd, WIPO Case No. DAU2006-0006, The Crown in Right of the State of Tasmania trading as “Tourism Tasmania” v. Gordon James Craven, citing WIPO Case No. DAU2003-0001; WIPO Overview of WIPO Panel Views on Selected UDRP Questions, 1.1.
Generally, the addition of a common, generic word to a trademark is not enough to overcome confusing similarity. Although the word “kreuzfahrt” is a common, generic term in German meaning “cruise”, it would be difficult to say that its meaning is widely known to a broad cross-section of Internet users. In some prior UDRP decisions, panels have held that the understanding of special connotations of words in English cannot be taken for granted because “not all Internet users speak English as their mother tongue.” See discussion in, e.g., Vivendi Universal v. Mr. Jay David Sallen, WIPO Case No. D2001-1121. This surely is even more clearly the case with a German word and such a word is arguably uncommon and non-generic to the non-German speakers on the Internet.
A further complicating factor is that the Complainant has provided no evidence that its marks “aida” or AIDA are uniquely associated with either the Complainant or its industry, and each mark on its face certainly does not make such association self-evident. Indeed, some may say, the marks most readily evoke the well known opera. Moreover, the very same combination of letters is widely used by third parties engaged in a variety of pursuits, including the following: “www.aida.developmentgateway.org” - the website of an online directory of development activities; “www.aida-americas.org” - the website of a coalition of non-profit legal organizations; “www.aida-international.org” - the website of the Worldwide Federation for breath-hold diving, and others. Indeed, a simple Google search of “aida” produces well over a dozen websites that have nothing to do with the Complainant before one reaches the Complainant's website or another website that mentions the Complainant.2
At the same time, the Panel recognizes that domain names combining a variety of words with “aida” have been found confusingly similar in numerous prior domain cases brought by the Complainant, the most relevant of which is AIDA Cruises German Branch of Societa di Corociere Mercurio S.r.l. v. Belize Domain WHOIS Service Lt, WIPO Case No. D2008-0109, because the disputed domain name there <aida-kreuzfahrt.com> is virtually the same as the disputed domain name in the present case. The Panel respects the consensus view that even though “The UDRP does not operate on a strict doctrine of precedent”, as a matter of sound policy for any well-functioning dispute resolution system, “it [is] desirable that [the Panels'] decisions are consistent with prior panel decisions dealing with similar fact situations. This ensures that the UDRP system operates in a fair, effective and predictable manner for all parties.” WIPO Overview of WIPO Panel Views on Selected UDRP Questions, 4.1.
For this reason, the Panel chooses to adhere to precedent and rules that the Complainant has demonstrated confusing similarity between the disputed domain name and its trademark. 3
The Panel finds that the Complainant's evidence of the Respondent's lack of permission to use the Complainant's trademark and its use of its website solely to provide sponsored links to commercial websites dedicated to travel topics, including the Complainant's competitors, satisfies the Complainant's initial burden of demonstrating that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Since the Respondent has not responded, much less demonstrated any rights or interests, the Complainant's evidence is sufficient to satisfy its ultimate burden under the second element of its case as well.
The Panel agrees with the Complainant that use made by the Respondent of the domain name and its choice to present the content of its website in German evidence bad faith. This finding is further buttressed by the adverse inference the Panel draws from the Respondent's default.
For all the foregoing reasons, the Panel finds in the Complainant's favor and in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel that the domain name <aidakreuzfahrt.com> be transferred to the Complainant.
Dated: January 19, 2009
1 The word “Pat” in the registration record is probably an incomplete form of “Patentowej,” meaning that the Office offers patent-related, as well as legal services.
2 Nevertheless, given that “kreuzfahrt” is a common, generic term in German, at the least, it may be considered confusingly similar to those Internet users familiar with the Complainant and its services offered under the AIDA mark. Furthermore, as noted in subsequent discussion, it is apparent from the record that the Respondent's intent in selecting the disputed domain name was to create and indeed trade on what it clearly believed to be the confusing similarity between the disputed domain name and the Complainant's marks, see Schering-Plough Corporation, Schering Corporation v. Dan Myers, WIPO Case No. D2008-1641.
3 It should be noted that reaching this decision would have been made considerably easier if the Complainant, which is represented by counsel, had cited the decisions in its prior UDRP cases.