Crystal Brand Company Limited v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA1908001857210
Complainant is Crystal Brand Company Limited (“Complainant”), represented by Adam Losey of Losey PLLC, Florida, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <crustalcruises.com>, registered with Media Elite Holdings Limited; Media Elite Holdings Limited.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 14, 2019; the Forum received payment on August 20, 2019.
On August 15, 2019, Media Elite Holdings Limited; Media Elite Holdings Limited confirmed by e-mail to the Forum that the <crustalcruises.com> domain name is registered with Media Elite Holdings Limited; Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited; Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited; Media Elite Holdings Limited registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 21, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 10, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@crustalcruises.com. Also on August 21, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 11, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it operates a fleet of over ten ships and offers over eight hundred (800) different luxury cruise voyages all around the globe. Complainant has rights in the CRYSTAL CRUISES mark through its trademark registration in the United States in 1992.
Complainant alleges that the disputed domain name is confusingly similar to its CRYSTAL CRUISES mark as it merely misspells the mark, and adds a “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not authorized to use Complainant’s CRYSTAL CRUISES mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent used the disputed domain name to advertise and offer competing travel-related services. After a demand letter was sent to Respondent, the resolving website was changed to a parked page that displays advertising links to products related to those of Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent has exhibited a pattern of bad faith registration through its history of past, adverse UDRP decisions. Further, Respondent attempts to attract, for commercial gain, users to the disputed domain name and to disrupt Complainant’s business by offering competing services. Respondent also engages in typosquatting. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CRYSTAL CRUISES and uses it market cruises around the world.
Complainant’s rights in its marks date back to at least 1992.
The disputed domain name was registered in 2009.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name first resolved to a website that offered competing products, then to a parked page that displays advertising links to related products. Respondent exhibited a pattern of pattern of bad faith registration and use of domain names.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name is a mere misspelling of Complainant’s mark (“y” replaced by to “u”), with the addition of the “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD ‘.com.’ This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”). The Panel therefore finds that the <crustalcruises.com> domain name is confusingly similar to Complainant’s CRYSTAL CRUISES mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the CRYSTAL CRUISES mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies the registrant of the disputed domain name as “Domain Administrator / Fundacion Privacy Services LTD.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
The disputed domain name resolves to a competing website. Specifically, it previously resolved to the webpage of one of Complainant’s competitors, but now resolves to a parked website with advertising links related to Complainant’s business. Such use is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Central Valley Automotive d/b/a Central Valley Hyundai v. Chris Shaffer, FA 1006001327840 (Forum July 22, 2010) (finding that a respondent’s use of a disputed domain name to divert Internet users to the respondent’s website and business of a competitor of the complainant is not a use in connection with a bona fide offering of goods or services under UDRP ¶ 4(c)(i) or a legitimate noncommercial or fair use under UDRP ¶ 4(c)(iii)). The Panel therefore finds that Respondent has failed to use the disputed domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). Moreover, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent used the disputed domain name to pass off as Complainant in order to compete with Complainant’s business. Use of a domain name to create a false impression of affiliation with a complainant in order to compete with and disrupt the complainant’s business is behavior indicative of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”). The Panel therefore finds that Respondent registered and used the domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
In addition, Respondent’s registration of the disputed domain name is part of a pattern of bad faith registration and use of domain names: Complainant provides a list of 17 prior UDRP cases where Respondent, Domain Administrator / Fundacion Privacy Services LTD, has been ordered to transfer ownership of domain names. A pattern of bad faith registration can be established by a showing of prior adverse UDRP precedent, and such a pattern can indicate bad faith per Policy ¶ 4(b)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). The Panel therefore finds that the registration and use of the disputed domain name is part of a pattern and is evidence of Respondent’s bad faith per Policy ¶ 4(b)(ii).
Finally, Respondent’s engaged in typosquatting when it registered the disputed domain name, because the disputed domain name is a mere misspelling of Complainant’s mark (a “y” is replaced by a “ u”). Typosquatting may evince a finding of bad faith registration under Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii) on this ground as well.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <crustalcruises.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 11, 2019
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