WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AIDA Cruises - German branch of Costa Crociere S.p.A. v. Birol Atlihan
Case No. D2013-2096
1. The Parties
Complainant is AIDA Cruises - German branch of Costa Crociere S.p.A. of Rostock, Germany, represented by Selting und Baldermann, Germany.
Respondent is Birol Atlihan of Munich, Germany.
2. The Domain Names and Registrar
The disputed domain names <aidakreuzfahrten.net> and <aidakreuzfahrten.org> are registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 3, 2013. On December 4, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 4, 2013, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. On December 10, 2013, the Center informed Complainant that the Complaint was administratively deficient and invited it to file an amended Complaint. On December 13, 2013, Complainant filed an amended Complaint.
The Center verified that the Complaint together with the amended 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 Respondent of the Complaint, and the proceedings commenced on December 19, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was January 8, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 9, 2014.
The Center appointed Stephanie G. Hartung as the sole panelist in this matter on January 14, 2014. 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
Complainant is a cruise line based in Rostock, Germany.
Complainant has provided evidence that it is the registered owner of numerous trademarks relating to the designation AIDA, including the following:
- Word mark AIDA, German Patent and Trademark Office (“DPMA”), Registration No.: 39701328, Registration Date: March 17, 1998, Status: Active;
- Word mark AIDA, Office for Harmonization in the Internal Market (“OHIM”), Registration No.: 004681987, Registration Date: January 24, 2008, Status: Active.
The disputed domain names <aidakreuzfahrten.net> and <aidakreuzfahrten.org> were both registered on March 29, 2013 and redirect to websites at “www.aidakreuzfahrten.net” and “www.aidakreuzfahrten.org” which have been set up by the Registrar.
Complainant requests that the disputed domain names be transferred to Complainant.
5. Parties’ Contentions
Complainant asserts that it operates cruises in Europe, the United States of America (the “USA”), the Caribbean as well as in Asia and is one of the market leaders in Germany with an annual turnover of EUR 882,700,000 in 2010. Complainant claims to be wellknown under its corporate name and trademark AIDA and has provided evidence that its AIDA trademark enjoys around 60% recognition on the German cruise market. A cease and desist letter sent by Complainant to Respondent on October 4, 2013 apparently remained unanswered.
Complainant suggests that the disputed domain names are identical to Complainant’s AIDA trademarks as the generic Top-Level Domain (gTLD) suffixes “.net” and “.org” as well as the prefix “www.” are to be neglected; besides, Complainant points to the fact that the term “kreuzfahrten” is nothing but the German translation of “cruises”.
Complainant further claims that Respondent has no rights or legitimate interests in respect of the disputed domain names since (1) Respondent has neither obtained a license nor a permission to use Complainant’s trademark, (2) the websites to which the disputed domain names redirect do not contain any information on an offering of any services by Respondent, and (3) Respondent has not obtained any other rights to use Complainant’s trademark.
Finally, Complainant asserts that the disputed domain names were registered and are being used in bad faith since (1) inaction is considered bad faith if Complainant’s trademark contained in the domain name is wellknown, as is Complainant’s AIDA trademark, (2) Respondent is a German citizen who is aware of Complainant being the market leader for cruises in Germany as well as of Complainant’s company name, and (3) it is impossible for Respondent to use the disputed domain names not violating Complainant’s trademark rights.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, Complainant carries the burden of proving:
(i) That the disputed domain names are identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) That Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) That the disputed domain names have been registered and are being used in bad faith.
Respondent’s default in the case at hand does not automatically result in a decision in favor of Complainant, however, paragraph 5(e) of the Rules provides that if Respondent does not submit a Response, in the absence of special circumstances, the Panel is to decide the dispute solely based upon the Complaint.
A. Identical or Confusingly Similar
The Panel concludes that the disputed domain names <aidakreuzfahrten.net> and <aidakreuzfahrten.org>, contrary to Complainant’s line of argumentation, are not identical with, however are at least confusing similar to the AIDA trademark in which Complainant has shown to have rights.
The disputed domain names incorporate the AIDA trademark in its entirety. It has been held in numerous UDRP decisions and has meanwhile become a consensus view among panelists (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.9) that the addition of a generic or descriptive term or geographical wording to a trademark in a domain name is normally insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP. Accordingly, the mere addition of the generic and descriptive term “kreuzfahrten” (which is the German translation of “cruises”, thus is even referring to Complainant’s core business) is not at all capable to dispel the confusing similarity arising from the incorporation of Complainant’s AIDA trademark in the disputed domain names.
Therefore, the first element under the Policy set forth by paragraph 4(a)(i) in the case at hand is fulfilled.
B. Rights or Legitimate Interests
The Panel is further convinced that on the basis of Complainant’s undisputed contentions, Respondent apparently has neither made use of the disputed domain names in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain names, nor can it be found that Respondent makes a legitimate, noncommercial or fair use thereof without intent for commercial gain.
Complainant has provided evidence that its AIDA trademark enjoys around 60% recognition on the German cruise market, thus in the country where Respondent is located. Moreover, Respondent obviously has set up the disputed domain names by combining Complainant’s AIDA trademark with the descriptive term “kreuzfahrten” which is the German translation of the term “cruises”, thus directly refers to Complainant’s core business. It is, therefore, reasonable to argue that Respondent had knowledge of Complainant’s AIDA trademark at the time of the registration of the disputed domain names and that the latter obviously alludes to Complainant’s AIDA trademark and business.
At the same time, Respondent has not been authorized to use Complainant’s AIDA trademark, neither as a domain name nor on Respondent’s website or in any other way. Moreover, the disputed domain names so far have not been used by Respondent for any purpose (other than to redirect to websites which apparently have been set up by the Registrar). Accordingly, the Panel concludes that it is almost impossible to contemplate how the disputed domain names could refer to anything other than the Complainant’s business and, therefore, its associated AIDA trademark.
Accordingly, Complainant has established a strong prima facie case that Respondent has no rights or legitimate interests in the disputed domain names. Now, the burden of production shifts to Respondent to come forward with appropriate allegations or evidence demonstrating to the contrary (see WIPO Overview 2.0, paragraph 2.1). In the case at hand, Respondent did not reply to Complainant’s allegations as they were included in the Complaint duly notified to Respondent by the Center on December 19, 2013, nor did he come forward with any other reasonable explanation that might have thrown a different light on Respondent’s possible rights or legitimate interests in the disputed domain names.
Therefore, the Panel finds that Complainant has also satisfied paragraph 4(a)(ii) and thus the second element of the Policy.
C. Registered and Used in Bad Faith
The Panel finally holds that the disputed domain names were registered and are being used by Respondent in bad faith.
As set out above, Respondent, by the time of registering the disputed domain names, was fully aware of Complainant’s AIDA trademark and business and the disputed domain names directly refer to the latter. In addition, Respondent has brought nothing forward nor are there any indications in the case at hand as to how the disputed domain names could be used by Respondent in a legitimate way.
Against this background, the Panel takes the view that the mere “passive holding” of the disputed domain names – which by the time of rendering this decision redirect to websites set up by the Registrar – does not at all prevent the finding of bad faith on the part of Respondent, but that on the contrary the examination of the circumstances of the case at hand are rather indicative thereof (see WIPO Overview 2.0, paragraph 3.2).
In this context, the Panel also takes into account that (1) Respondent obviously provided false WhoIs information since the delivery of the Written Notice of the Complaint sent to Respondent via courier on December 19, 2013 failed because of an incorrect address and phone number and (2) Respondent kept silent on all of Complainant’s contentions as they were included both in the cease and desist letter dated October 4, 2013 as well as in the Complaint. These facts taken all together throw a light on Respondent’s behavior which at least supports the finding of a registration and use of the disputed domain names in bad faith.
Therefore, the Panel finds that also the third element under the Policy set forth by paragraph 4(a)(iii) is fulfilled and that, accordingly, Complainant has satisfied all of the three requirements of paragraph 4(a) 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 names <aidakreuzfahrten.net> and <aidakreuzfahrten.org> be transferred to Complainant.
Stephanie G. Hartung
Date: January 27, 2014