WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AIDA Cruises - German Branch of Costa Crociere S.p.A. v. Wendy Webbe
Case No. D2011-1878
1. The Parties
The Complainant is AIDA Cruises - German Branch of Costa Crociere S.p.A. of Rostock, Germany, represented by Selting+Baldermann, Germany.
The Respondent is Wendy Webbe of Charlestown, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name <aidaa.net> is registered with SiteName.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 31, 2011. On October 31, 2011, the Center transmitted by email to SiteName a request for registrar verification in connection with the disputed domain name. On November 14, 2011, SiteName (the “Registrar”) transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On that day, the Center sought clarification from the Registrar which, although confirming that the Respondent is the registrant, also indicated that the contact for the disputed domain name was “Domain Sales We Want Your Name LLC”. On November 15, 2011, the Registrar responded to the effect that it had “restored the contact data [to] what it was before the update”. (From this, the Panel has inferred that the Respondent altered its contact details subsequent to the filing of the Complaint, and before the first response to the Center from the Registrar.)
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 November 16, 2011. Transmission records in the case file indicate that posting of the hard copy Complaint failed because of insufficient address details (as in the WhoIs record). In accordance with the Rules, paragraph 5(a), the due date for Response was December 6, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 7, 2011.
The Center appointed James A. Barker as the sole panelist in this matter on December 15, 2011. 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.
4. Factual Background
The disputed domain name was registered on July 23, 2011 (as indicated by the “creation date” confirmed by the Registrar).
The Complainant is a cruise line based in Rostock, Germany, and one of the market leaders in Germany. The Complainant operates cruises in Europe, United States of America (U.S.), the Carribean, and Asia. The Complainant is the owner of a registered trademark in Germany for AIDA, with a registration date of March 17, 1998, as well as a Community mark.
The Complainant provides (undated) screenshots of the website at the disputed domain name. That website features links under the headings corresponding to famous operas including “Aida”, “Aida Opera”, “Tosca”, and “La Boheme”. The site also feature a miscellany of other links relating to e.g. “Earn $87/Hour Online”, “Friend Finder”, “Broadway Tickets”, as well as links in German.
5. Parties’ Contentions
The Complainant says that the disputed domain name is identical to its AIDA trademarks. The Complainant says that the “www.” and “.net” suffixes are irrelevant as they are required features of a domain name. The Complainant also says that the additional “a” can be neglected as a domain name which contains a common or obvious misspelling of a trademark can be treated as confusingly similar.
The Complainant says that the Respondent has no rights or legitimate interests in respect of the disputed domain name. A legitimate interest would require that the Respondent does not use the disputed domain name commercially or uses it in connection with a bona fide offering of goods and services. The Respondent has not obtained rights to use the Complainant’s mark, nor a license or permission from the Complainant. The Respondent uses to the disputed domain name in connection with a website providing sponsored web links relating to travel services (a “landing” or “pay per click” website). Besides the sponsored links, the Respondent does not offer any other services or goods on its website.
The Complainant says that the Respondent uses the disputed domain name in bad faith, and refers to previous UDRP WIPO panel decisions finding against respondents in circumstances similar to this one. The Complainant also says that the Respondent was well aware of the Complainant’s marks, as the content of the Respondent’s website relates to the Complainant’s business and a number of the sponsored links on the Respondent’s website are in German.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
To succeed under paragraph 4(a) of the Policy, the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
These issues are discussed below.
A. Identical or Confusingly Similar
There is no doubt that the Complainant has rights in its registered AIDA mark. The Complainant provides evidence to this effect of registered rights in Germany since at least 1998.
While the disputed domain name is not identical to the Complainant’s AIDA mark, it is clearly confusingly similar. The only relevant difference between them is that the disputed domain name adds the letter “a” at the end. This is a trivial difference. The disputed domain name is otherwise phonetically and visually confusingly similar to the Complainant’s mark. The Complainant’s mark is entirely incorporated in the disputed domain name. The whole incorporation of a mark in a domain name has been previously recognized as a sufficient basis for a finding of confusing similarity under the Policy. (See e.g., Oki Data Americas, Inc v. ASD, Inc., WIPO Case No. D2001-0903; EAuto, L.L.C. v. EAuto Parts, WIPO Case No. D2000-0096.)
For these reasons, the Panel finds that the Complainant has established its case under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
In relation to this element of the Policy, it is well established that the burden is on the complainant to establish the absence of the respondent’s rights or legitimate interests in the disputed domain name. However, because of the inherent difficulties in proving a negative, the consensus view is that a complainant need only put forward a prima facie case that the respondent lacks rights or legitimate interests. The evidential burden then shifts to the respondent to rebut that prima facie case (see also, e.g. World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles, WIPO Case No. D2000-1306.)
The Complainant has established a prima face case against the Respondent in relation to this second element under the Policy. The burden is therefore on the Respondent to rebut that argument. However, the Respondent has failed to respond. There is otherwise little evidence in the case file to indicate that the Respondent may have a right or legitimate interest in the disputed domain name.
Accordingly, the Panel finds that the Complainant has established its case under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Complainant’s argument in relation to this ground rests largely on the allegation that the Respondent has engaged in “typo-squatting”. That is, the allegation is that the Respondent has deliberately registered a typographic variant of the Complainant’s mark, for the purpose of exploiting the trademark value of that mark. In this respect, the Complainant points to the content of the Respondent’s website. The Complainant says that the content of the Respondent’s website relates to its business and contains links in German.
However, the Complainant does not present a strong case, and the Panel considers that the issue of typo-squatting is not clear cut. The Respondent’s website contains links that are predominantly relevant to well-known operas, like that of Verdi’s opera “Aida”. The website also contains other miscellaneous links, unrelated to opera, which suggests that the links are automatically generated, rather than selected with a deliberate theme in mind. Further, the Complainant does not present strong evidence of its reputation worldwide, which might suggest more strongly that the Respondent was aware of its mark.
Nevertheless, on balance, the Panel finds that the disputed domain name was registered and has been used in bad faith. Predominantly, this is for the following reasons:
Firstly, the Respondent has used the disputed domain name to direct traffic to a “click through” or “pay per click” website. It is well established that the use of a parking page is strong evidence of bad faith. See e.g., Serta Inc. v. Charles Dawson, WIPO Case No. D2008-1474; Get Away Today.Com Inc. v. Warren Gilbert, WIPO Case No. DCO2010-0021. This does not mean that the operation of a click through site is always a sign of bad faith, in circumstances where a respondent uses the associated domain name to profit from its descriptive, common meaning. See e.g. Grundfos A/S v. Texas International Property Associates, WIPO Case No. D2007-1448. However, there was little evidence in this case that the term “aidaa” has a common or descriptive meaning. In combination with this factor, and to the extent that the Respondent’s website may automatically include links, the evidence is suggestive that the Respondent registered and has used the disputed domain name speculatively, to trade on whatever value it might have, including its trademark value.
Secondly, the Respondent provides little evidence to rebut the allegations made against it, or to provide contrary evidence to suggest that the registration of the disputed domain name was made in good faith. The Respondent provides no explanation or evidence which would indicate that there is some objective connection between its business and the disputed domain name.
Thirdly, it appears that the Respondent has sought to change its contact details after the filing of the Complaint. This is suggestive that the Respondent has sought to frustrate the proceedings against it. The Panel considers it is reasonable to draw a negative inference against the Respondent from such evidence.
Accordingly, the Panel on balance finds that the Complainant has established its case under paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <aidaa.net> be transferred to the Complainant.
James A. Barker
Dated: December 27, 2011