Complainant is AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L. of Rostock, Germany, represented by Selting and Baldermann, Cologne, Germany.
Respondent is Enspire Technologies (Pvt) Ltd. of Colombo, the Democratic Socialist Republic of Sri Lanka.
The disputed domain name <aidaayurveda.com> ( the “Domain Name”) is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 29, 2008. On September 30, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the Domain Name. On October 1, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that Enspire Technologies (Pvt) Ltd. (“Respondent”) is the registrant of the Domain Name and providing the contact details for the administrative, billing, and technical contacts. The Center verified that 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, and the proceedings commenced, on October 6, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 26, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent of the default on October 30, 2008.
The Center appointed David H. Bernstein as the sole panelist in this matter on November 7, 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.
On November 17, 2008, the Panel issued Procedural Order No. 1. In the Order, the Panel stated, in relevant part:
“Given the absence of a Response, the Panel has carefully reviewed the record to ensure that Respondent received fair notice of this proceeding. See Sermo, Inc. v. CatalystMD, LLC, WIPO Case No. D2008-0647, n.2 (finding, in case with a respondent default, that WIPO did provide adequate notice under the Rules). The Center sent notification of the Complaint to Respondent by United Parcel Service (‘UPS') to the Respondent's Sri Lanka address, as provided in the Complaint and Registrar Verification, and sent a copy by UPS to Respondent's Technical and Administrative Contact, also located in Sri Lanka, as provided in the Registrar Verification. UPS, however, has reported that it was unable to deliver these packages because the Sri Lanka addresses provided did not appear to be complete. The Center also sent the notification to the email addresses listed in the Registrar Verification and to the postmaster email address; the Center did not receive any bounce back emails indicating that the emails were not delivered. The Center did not attempt fax service because neither the Complaint nor the Registrar Verification included a fax number for the Respondent.
“In the normal case, attempted delivery of the Complaint to the addresses provided by in the Complaint and Registrar Verification is sufficient. For this reason, and on the record of this case, the Panel finds that the Center has discharged its obligation to provide fair notice to Respondent under the Rules, paragraph 2(a).
“Nevertheless, this case presents an unusual situation in that the website to which the domain name resolves strongly suggests that the Registrant is holding the domain name as a proxy for another party, and it is not clear whether the real party in interest has received notice of this proceeding. The website provides information about a hotel in Sri Lanka named Aida Ayurveda & Holistic Health Resort and indicates that it is ‘Powered by Enspire.' The word ‘Enspire' includes a hyperlink to the Enspire website, http://www.enspiresolutions.com, at which Enspire indicates that it provides website design and related services. This suggests to the Panel that Enspire has assisted Aida Ayurveda & Holistic Health Resort with the design and hosting of its website, but that the real party in interest may be the hotel itself. Under these circumstances, the Panel concludes that, in the interests of due process, the hotel should also be given notice of the proceedings. In that connection, the Panel notes that contact information for the hotel is provided on the ‘Contact Us' page on the website to which the domain name resolves. See http://www.aidaayurveda.com/contact_us/aida_contact_us.html; cf. Rules, paragraph 2(a)(ii)(C).
“Accordingly, pursuant to paragraph 10(a) of the Rules, the Panel requests that WIPO renotify the Complaint, along with a copy of this Procedural Order. The Complaint, Notice, and Order should be sent to Respondent in the following manners:
“1. by post/courier to Aida Ayurveda & Holistic Health Resort at 12A, Managala Mawatha, Bentota, Sri Lanka (the Center should also provide UPS with the hotel's phone numbers, 94-34-71137 and 94-34-71139, to facilitate delivery);
“2. by email to email@example.com and firstname.lastname@example.org; and
“3. by fax to 94-34-71140.
“Pursuant to the Rules, paragraph 5(a), Respondent shall be given twenty (20) days from the date of the notification to submit a Response, if any. Pursuant to the Rules, paragraphs 10(c) and 15(b), the Panel shall endeavor to issue its decision within fourteen (14) days of receipt from the Center of the Response or notification of Respondent's continuing default.”
On November 17, 2008, the Center forwarded the Complaint, and all other documents in this case (including Procedural Order No. 1) as required by the Panel's Order. The Center received confirmation that the documents delivered to the Aida Ayurveda & Holistic Health Resort via UPS were received and signed for on November 21, 2008. The Center did not receive any bounce back messages for the email sent to <email@example.com>. However, the Center found that the email sent to <firstname.lastname@example.org> had “permanent fatal errors” and did not go through; the fax was also not successful.
Neither Respondent nor Aida Ayurveda & Holistic Health Resort responded to the Complaint. Accordingly, on December 10, 2008, the Center issued a second notice of Respondent default.
The following facts are taken from the Complaint and from the Panel's review of publicly-available websites:
Complainant is a German cruise line operating cruises in Europe, the United States of America, the Caribbean, and Asia. Complainant is the owner of the AIDA trademark, registered on the German Trademark Register (No. 397 01 328), which was filed on January 15, 1997 and registered March 17, 1998, and the AIDA trademark, registered with the Trade Marks and Designs Registration Office of the European Union (Trade Mark No. 004681987), which was filed on October 12, 2005 and registered on January 24, 2008 (together, the “Marks”).
Respondent registered the Domain Name <aidaayurveda.com> on January 14, 2003.
The Domain Name resolves to a website that advertises a hotel in Sri Lanka named Aida Ayurveda. Third party travel websites such as tripadvisor.com, tripwolf.com and “www.srilankanexpeditions.com” confirm that the Aida Ayurveda hotel is a legitimate hotel in Sri Lanka. As noted above, the website includes a link indicating that the site is “Powered by Enspira”, which is identified through the hyperlink as a web design and hosting firm located in Sri Lanka. Complainant acknowledges that the Domain Name resolves to a website at which a hotel is advertised that provides ayurveda wellness services.
Complainant makes the following contentions:
The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Complainant operates a cruise line based in Rostack, Germany and states that it is one of the market leaders in Germany with an annual turnover of €451 million in 2007. The Complainant states that it operates cruises in Europe, the United States, the Caribbean and Asia. Complainant has registered the AIDA mark in Germany and in the European Union.
Complainant states that the Domain Name is similar to the AIDA mark and that the gTLD suffix “.com” and the prefix “www.” should be ignored for the purposes of determining identity or confusing similarity. Complainant further states that the “ayurveda” portion of the Domain Name should be neglected because it is “solely descriptive for the wellness services offered in the hotel advertised under the disputed domain.”
The Respondent has no rights or legitimate interests in respect of the Domain Name.
Complainant contends that Respondent has no rights to use or legitimate interests in the Doman Name because Respondent is utilizing the Domain Name commercially, for profit and not in the connection with a bona fide offering of goods and services. Complainant further states that Respondent has not obtained a license or permission from Complainant to use the AIDA mark.
The Domain Name was registered and is being used in bad faith.
Complainant avers that Respondent is using the Domain Name in bad faith because the Domain Name is similar to Complainant's AIDA mark and is being used to market products of competitors. Complainant further alleges that the Respondent's use of the Domain Name disrupts Complainant's business. Complainant states that Respondent is using the Domain Name to offer hotel services and that, because a German language version of the website is available, the website is being used to target customers in Germany.
Complainant has requested that the Panel issue a decision that the Domain Name be transferred to Complainant.
Respondent did not reply to Complainant's contentions.
In accordance with paragraph 4(a) of the Policy, in order to succeed in this administrative proceeding and obtain the requested remedy (in this case transfer of the Domain Name), Complainant must prove that each of the three following elements are present:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) the respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
The first element of the Policy requires Complainant to prove (a) that it has rights in a trade mark or service mark, and (b) that the Domain Name is identical to or confusingly similar to such trade mark or service mark.
Complainant has submitted copies of its trademark registrations for AIDA in Germany and the European Union. These registrations constitute prima facie evidence of the validity of the mark. Complainant thus has established that it has rights in the mark AIDA.
Although the domain name <aidaayurveda.com> is not identical to Complainant's mark, it is confusingly similar for purposes of the Policy because it incorporates, in its entirety, Complainant's AIDA mark with the mere addition of the common word “ayurveda”, WIPO Overview of WIPO Panel Views on Selected UDRP Questions ((“Decision Overview”) §1.2;1 see also EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047 (when a domain name incorporates in its entirety a distinctive mark, that creates sufficient similarity between the mark and the domain name to render it confusingly similar); Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662 (similarity is established whenever a mark is incorporated in its entirety, regardless of other terms added to the domain name).
The Panel therefore finds that Complainant has satisfied the first prong of the test.
Despite the fact that Respondent has failed to respond and thus is in default, it is still Complainant's burden to prove that Respondent lacks rights or legitimate interests in the Domain Name. See EAuto, L.L.C., supra (ruling for a defaulting respondent where complainant failed to show that respondent lacked any rights or legitimate interests in the domain name at issue). In order to sustain that burden, Complainant needs to at least make a prima facie showing that Respondent lacks rights to or legitimate interests in the Domain Name. Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
The totality of Complainant's allegations in support of its claim that Respondent has no rights or legitimate interest in the Domain Name are as follows:
“The Respondent has no rights to use or legitimate interests in respect of the disputed domain name. A legitimate interest would require that the Respondent uses the domain not commercially or the use is connected with a bona fide offering of goods and services. The Respondent has not obtained a right to use the prior registered trademarks at issue. He has neither obtained a license nor a permission to use the trademarks from the Complainant. The Respondent uses the domain commercially offering hotel services to be paid for (Annex 7).”
Complainant's own submission of screen shots from the “www.aidaayurveda.com” website (attached as Annex 7 to the Complaint) show that Respondent is using the Domain Name to advertise a hotel in Sri Lanka, which offers ayurveda wellness services. Although Complainant acknowledges, in passing, that the website advertises a hotel and that the “ayurveda” portion of the Domain Name likely refers to wellness services offered at the hotel, it does not address why Respondent (which appears to be the web designer and/or hosting firm for the hotel's website) does not have the right to use a domain name that reflects the name of a legitimate hotel in Sri Lanka. Complainant makes no claim that the website “www.aidaayurveda.com” is a mere pretense, that the Aida Ayurveda & Holistic Health Resort has no rights to its name, or that the hotel's use of the AIDA trademark constitutes infringement of any rights Complainant has in Sri Lanka. Cf. SoftCom Technology Consulting Inc. v. Olariu Romeo/Orv Fin Group S.L., WIPO Case No. D2008-0792 (if a domain name is infringing on a mark, there can be no bona fide use).
Based on these screen shots, it is clear that the website offers the services of a resort entitled “Aida Ayurveda & Holistic Health Resort”. The screen shots further show that the website is offering spa treatments and hotel rooms at two resorts located in Sri Lanka. Complainant also includes a screen shot of the website's “About Us” page that states:
“The Aida Ayurveda & Holistic Health Resort, which began as a single resort, has today expanded into two sprawling resorts located at Bentota and Induruwa. Both resorts specialize in Ayurveda, the ancient healing philosophy of Sri Lanka, and are renowned for their Ayurvedic treatment plans which combine back-to-nature therapy with state-of-the-art comfort and convenience.”
Although it is not clear from the Complaint when the resort began using the Domain Name, the Panel has determined, through examination of archived webpages in the Internet Wayback Machine (see “www.archive.org”), that the Domain Name has been used by the resort to advertise their services at least since August 5, 2003, prior to the filing of this Complaint. It thus appears that Respondent's client has been offering services under a mark corresponding to the Domain Name since before this dispute was initiated, and given Complainant's failure to show any potential trademark violation in Sri Lanka, that offering of services appears to be bona fide. At the minimum, on this record, Complainant has failed to prove, by a preponderance of the evidence, that Respondent, as web designer and hosting company for the hotel, lacks rights or legitimate interests in the Domain Name.
In that regard, this case is remarkably similar to a parallel case, also filed by Complainant. In AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L., v. Hostal Torrejon, WIPO Case No. D2008-1472, Complainant similarly challenged a domain name <hotelaida.com> that was used in connection with a hotel, named Aida, located in Spain. As the panel found in that case:
“The Respondent has convincingly demonstrated that it has been operating a genuine hotel business under the name Hotel Aida since 1992, long before the Complainant registered its first trademark. The Respondent clearly falls within paragraph 4(c)(i) of the Policy in that it has been conducting a legitimate business before any notice of the dispute arose. A stronger case for the application of paragraph 4(c)(i) is hard for this Panel to imagine.”
In this case, too, even in the absence of a Response, it is clear that the hotel is operating a legitimate hotel under the AIDA trademark. On these facts, Complainant simply cannot sustain its burden of proving that Respondent, which appears to have designed and hosted the website for the hotel, lacks rights or a legitimate interests in the Domain Name. See EAuto, L.L.C., supra. (respondent had a legitimate interest in a domain name that reflected the name of its business).
Complainant nevertheless contends that Respondent's use is not legitimate because it is using the AIDA mark without a license. That argument is without merit. Respondent's client offers services in Sri Lanka, a country in which Complainant has not shown any rights in the AIDA trademark Although Complainant may have legitimate interests in its mark in the European Union, these trademark rights do not mean that Respondent's client, a Sri Lankan hotel, must obtain a license to use the AIDA mark for a hotel in Sri Lanka. See FINAXA Société Anonyme v. Vitalie Popa, WIPO Case No. D2004-0873 (finding that respondent had a legitimate interest in the mark that did not conflict with complainants because they operated in two different markets).
Accordingly, the Panel finds that Complainant has failed to demonstrate that Respondent lacks rights or legitimate interests in the Domain Name.
The final factor is whether Respondent registered and is using the Domain Name in bad faith. The Complainant has not satisfied its burden of proving this factor.
The only claims Complainant makes that are relevant to paragraph 4(b) of the Policy are that: (i) Respondent uses the Domain Name to “market products of competitors”, and (ii) Respondent's use of the Domain Name is disruptive to Complainant's business. As the Complaint puts it:
“The Respondent uses the disputed domain name in bad faith. A WIPO arbitration court has ruled that a domain which is similar to a trademark and used to market products of competitors on the related website constitutes an improper use (Micro Electronics, Inc. v. J Lee, WIPO Case No. D2005-0170). Also this type of use disrupts the business of the complainant (Microsoft Corporation v. Gioacchino Zerbo WIPO Case No. D2005-0644) and therefore is evidence of bad faith.
“The Respondent uses the Complainant's trademarks identically in the registered domain name adding solely another part to the second level domain which is descriptive for the wellness services offered in the advertised hotel. The Respondent offers his hotel services also in the language German on the website and therefore addresses the hotel service to potential customers in Germany (Annex 7).”
These claims are wholly conclusory. Complainant offers no facts to support a showing that the Domain Name is being used to market products in competition with Complainant's cruises (which, as far as the Panel can tell, are not offered in Sri Lanka). To the contrary, the hotel appears to offer spa treatments and hotel accommodations in Sri Lanka, whereas Complainant offers cruises, primarily targeted to young, active, German-speaking travelers interested in cruising in the Mediterranean, Northern Europe, the Caribbean, the Arabian Gulf and around the Canary Islands. These facts do not support the allegation that Respondent's hotel is improperly using the Domain Name, in bad faith, to compete unfairly with Complainant or to disrupt Complainant's cruise business.
Complainant has thus utterly failed to allege any facts that can support a finding of bad faith registration and use by Respondent. Although the Panel acknowledges that Complainant has succeeded against some other registrants of AIDA-related domain names, who were making bad faith use such as pay-per-click parking pages or portal pages promoting competitive cruise lines, AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L. v. Aida Ltd., Stefan Miersen, WIPO Case No. D2008-1132 (October 22, 2008); AIDA Cruises German Branch of Società di Crociere Mercurio S.r.l. v. Whois Privacy Services/ “German branch of Societa di Crociere Mercurio S.r.L.”, WIPO Case No. D2008-0180 (June 9, 2008); AIDA Cruises German Branch of Società di Crociere Mercurio S.r.l. v. Belize Domain WHOIS Service Lt, WIPO Case No. D2008-0109 (March 21, 2008); AIDA Cruises German Branch of Costa Crociere S.p.A. v. BEALO GROUP S.A., WIPO Case No. D2006-1306 (December 29, 2006), bad faith must be proven against each respondent on the facts of each case, and the bad faith of those other registrants cannot be imputed to this Respondent. Indeed, this case is quite similar to the other cases Complainant has unsuccessfully filed against hotel and/or tour operators, in which the panels also found an absence of bad faith use and registration. AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L., v. Hostal Torrejon, supra; AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L., v. Mustafa Kaya and Aida Turizm Seyahat Acenteliği LTD. Şti., WIPO Case No. D2008-1130.
Because the Complainant has not established that Respondent registered or used the Domain Name in bad faith, let alone did both, the Panel concludes that Complainant has not established the third element of its Complaint.
Under the Rules, the Panel is asked to consider whether Complainant is guilty of Reverse Domain Name Hijacking (“RDNH”). That is true notwithstanding that Respondent has not requested such a finding, and even in the absence of a Response. The Rules specifically put the burden on the Panel to determine whether a complainant has tried to use “the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name.” Rules, paragraph 1 and 15(e). Given the weakness of Complainant's case in this proceeding, and the pattern of Complainant's filing of similarly weak claims against other hotel/tour operators, AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L., v. Hostal Torrejon, supra; AIDA Cruises German Branch of Societá di Crociere Mercurio S.r.L., v. Mustafa Kaya and Aida Turizm Seyahat Acenteliği LTD. Şti., supra, the Panel concludes that a finding of RDNH is appropriate in this case.
A finding of RDNH may be made if “Complainant knew of Respondent's unassailable right or legitimate interest in the disputed domain name or the clear lack of bad faith registration and use and nevertheless brought the Complaint in bad faith.” Futureworld Consultancy pty. Limited. v. Online Advice, WIPO Case No. D2003-0297. That standard is met in this case. A cursory review of Respondent's website makes it clear that Respondent hosts the website for the hotel, and that the hotel is legitimately called AIDA. In fact, Complainant's own submissions, including screen shots of the website to which the Domain Name resolves, show that Complainant knew that the Domain Name was being used to advertise the services of a resort in Sri Lanka. Further inquiry would have revealed that the resort is listed in online travel sites and that the hotel was offering bona fide goods and services. Complainant included no arguments as to why the hotel's use of the AIDA name in Sri Lanka might be infringing or otherwise inappropriate or illegitimate, and included no allegations of fact that could possibly demonstrate bad faith registration, let alone bad faith use. Rohl, LLC v. ROHL SA, WIPO Case No. D2006-0645 (“RDNH “upheld in circumstances where a respondent's use of a domain name could not, under any fair interpretation of the facts, have constituted bad faith, and where a reasonable investigation would have revealed the weaknesses in any potential complaint under the Policy”); Deutsche Welle v. DiamondWare Limited, WIPO Case No. D2000-1202 (RDNH appropriate where complainant knew that the respondent used the domain name as part of a bona fide business).
Accordingly, the Panel declares, pursuant to Rule 15(e), that the Complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.
Because Complainant has not demonstrated all three elements required under the Policy, the Complaint is denied. Moreover, in light of the Complainant's actions, the Panel finds Complainant has engaged in an attempt at Reverse Domain Name Hijacking.
David H. Bernstein
Dated: December 17, 2008
1 As this Panel held in Fresh Intellectual Properties, Inc. v. 800Network.com, Inc., WIPO Case No. D2005-0061, at n.3 (March 21, 2005): “Although the WIPO Decision Overview is not precedential in nature, it does reflect a studied and considered summary of consensus positions culled from the decisions of numerous panelists during the first five years of administration of the UDRP. When such a consensus has developed, it is incumbent upon panels to follow the consensus (or the majority view) to promote consistency among UDRP decisions.”