Carnival Plc v. Web Advertising, Corp.
Claim Number: FA0706000997914
Complainant is Carnival Plc (“Complainant”), represented by Brett
A. August, of Pattishall, McAuliffe, Newbury, Hilliard
& Geraldson LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <queenelizabeth2.org>, registered with Belgiumdomains, LLC.
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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 1, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 4, 2007.
On June 6, 2007, Belgiumdomains, LLC confirmed by e-mail to the National Arbitration Forum that the <queenelizabeth2.org> domain name is registered with Belgiumdomains, LLC and that Respondent is the current registrant of the name. Belgiumdomains, LLC has verified that Respondent is bound by the Belgiumdomains, LLC registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On June 6, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 26, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@queenelizabeth2.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 2, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <queenelizabeth2.org> domain name is identical to Complainant’s QUEEN ELIZABETH 2 mark.
2. Respondent does not have any rights or legitimate interests in the <queenelizabeth2.org> domain name.
3. Respondent registered and used the <queenelizabeth2.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Carnival Plc, operates one of the largest cruise and leisure travel companies in the world. Complainant owns more than 80 cruise ships, including the Queen Elizabeth 2, considered to be the most famous ocean liner in the world. Complainant has conducted business related to this ship under the QUEEN ELIZABETH 2 mark since it was launched in 1969 and holds trademark registrations for the QUEEN ELIZABETH 2 mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,501,896 issued August 30, 1988), along with registrations in several other countries.
Respondent registered the <queenelizabeth2.org> domain name on November 17, 2006. Respondent’s domain name resolves to a
website displaying various links to related and unrelated third-party websites,
some of which are in direct competition with Complainant. Respondent has also been the respondent in
several previous UDRP decisions in which the disputed domain names in those
cases were transferred from Respondent to the respective complainants. See
River Valley Credit Union, Inc., v. Web Adver., Corp., FA 771891 (Nat. Arb. Forum Sept. 26, 2006); see also Smooth Corp. v. Web Adver., Corp., FA 792048 (Nat. Arb. Forum Oct. 25,
2006); see also The Hazelden Found. v.
Web Adver. Corp., FA 900203
(Nat. Arb. Forum Feb. 27, 2007).
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant’s registration of its QUEEN ELIZABETH 2 mark with the USPTO sufficiently establishes its rights in the mark under Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <queenelizabeth2.org>
domain name is identical to Complainant’s QUEEN ELIZABETH 2 mark as the
disputed domain name fully incorporates the mark, simply deleting the spaces
between the words. Also, the addition of
the generic top-level domain (“gTLD”) “.org” is irrelevant to a Policy ¶ 4(a)(i) analysis as a top-level domain is a required element of
all domain names. Thus, the Panel finds
that the <queenelizabeth2.org> domain
name is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Tech.
Props., Inc. v. Burris, FA 94424 (Nat. Arb. Forum May 9, 2000)
(finding that the domain name <radioshack.net> is identical to the
complainant’s mark, RADIO SHACK); see
also
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant has the initial burden of proving that Respondent lacks rights or legitimate interests in the <queenelizabeth2.org> domain name. However, once Complainant establishes a prima facie case, the burden shifts to Respondent to prove that it does have rights or legitimate interests in the disputed domain name. In the instant case, the Panel finds that Complainant has established a prima facie case. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Respondent’s failure to answer the Complaint raises the presumption that Respondent lacks rights or legitimate interests in the <queenelizabeth2.org> domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”). Nevertheless, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
There is nothing in the record to suggest, and Respondent’s WHOIS information does not indicate, that Respondent is commonly known by the <queenelizabeth2.org> domain name. Moreover, Respondent is not licensed or authorized by Complainant to use the QUEEN ELIZABETH 2 mark in any way. Therefore, Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s <queenelizabeth2.org> domain name resolves to a website featuring links to various related and unrelated third-party websites, some of which are in direct competition with Complainant. The Panel infers that Respondent earns click-through and pop-up fees when Internet users visit this website and click on the links. This does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(ii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <queenelizabeth2.org>
domain name to redirect Internet users to a website featuring links to
Complainant’s direct competitors. This
constitutes a disruption of Complainant’s business and qualifies as bad faith
registration and use under Policy ¶ 4(b)(iii). See S.
Exposure v. S. Exposure, Inc., FA 94864 (Nat.
Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by
attracting Internet users to a website that competes with the complainant’s
business); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that Respondent's
purpose of registration and use was to either disrupt or create confusion for
Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii)
[and] (iv).”).
The Panel presumes that Respondent benefits commercially from the pop-up advertisements on the website that resolve from the <queenelizabeth2.org> domain name, in addition to accruing click-through fees when Internet users click on the links displayed on the website. Respondent is therefore capitalizing on the likelihood that users will confuse the disputed domain name as being affiliated with Complainant. This is further evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
Furthermore, Respondent has been the respondent in several
previous UDRP decisions in which the disputed domain names in those cases were
transferred from Respondent to the respective complainants. See River
Valley Credit Union, Inc., v. Web Adver., Corp., FA 771891 (Nat. Arb. Forum Sept. 26, 2006); see also Smooth Corp. v. Web Adver., Corp., FA 792048 (Nat. Arb. Forum Oct. 25,
2006); see also The Hazelden Found. v.
Web Adver. Corp., FA 900203
(Nat. Arb. Forum Feb. 27, 2007). Under Policy ¶ 4(b)(ii),
this pattern further indicates that Respondent registered and is using the
current disputed domain name, <queenelizabeth2.org>,
in bad faith pursuant to Policy ¶ 4(a)(iii).
See Sport Supply
Group, Inc. v. Lang, D2004-0829 (WIPO Dec. 10, 2004)(“[Respondent]
registered the <usgames.com> domain name in order to prevent
[Complainant] from reflecting its U.S. GAMES Mark in a corresponding domain
name [pursuant to Policy ¶ 4(b)(ii)]. The pattern of such conduct is established, inter alia, by the public
decisions of two different UDRP proceedings [against] Respondent.”); see also Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii)
because the domain name prevented the complainant from reflecting its mark in a
domain name and the respondent had several adverse decisions against it in
previous UDRP proceedings, which established a pattern of cybersquatting).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <queenelizabeth2.org> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: July 10, 2007
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