Carnival Plc v. Dave Jackson
Claim Number: FA0706000997916
PARTIES
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 <queen-elizabeth-2.com>, registered
with Schlund+Partner
Ag.
PANEL
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.
Clive Elliott as Panelist.
PROCEDURAL HISTORY
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, Schlund+Partner Ag confirmed by e-mail to the
National Arbitration Forum that the <queen-elizabeth-2.com> domain name
is registered with Schlund+Partner Ag and
that Respondent is the current registrant of the domain name. Schlund+Partner
Ag has verified that Respondent is bound by the Schlund+Partner Ag 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 12, 2007, a Notification
of Complaint and Commencement of Administrative Proceeding (the “Commencement
Notification”), setting a deadline of July 2, 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@queen-elizabeth-2.com by e-mail.
A timely Response was received on July
2, 2007. The Response was however
deficient under ICANN Rule 5 as it was not received in hard copy.
On July 7, 2007 pursuant to Complainant’s request
to have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed Clive Elliott as Panelist.
RELIEF SOUGHT
Complainant requests that the disputed domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant and its related companies and subsidiaries comprise the largest cruise company and one of the largest leisure travel companies in the world. Complainant holds some of the most recognisable brands in ocean-going travel, including Carnival Cruise Lines, Princess Cruises, Holland America Line and Cunard Line. It operates more than 80 cruise ships having a total capacity of more than 140,000 passengers.
One of Complainant
Complainant is the owner of numerous trademark registrations and pending applications throughout the world for the marks QUEEN ELIZABETH 2 and QE2 in relation to a wide variety of goods and services.
Complainant asserts that as a result of its long and extensive use of the QUEEN ELIZABETH 2 and QE2 marks, as well as the substantial sums Complainant has spent on advertising and promoting the marks, the QUEEN ELIZABETH 2 and QE2 marks have become famous and represent a valuable goodwill owned by Complainant.
Complainant contends that
Respondent resides in Naples, Florida, and is not affiliated or related in any
way to Complainant, and is not licensed or authorized to use the QUEEN
ELIZABETH 2 or QE2 marks. According to
the WHOIS records, the disputed domain name was registered on August 8, 2006,
long after Carnival Plc
Complainant further contends that Respondent currently uses the disputed domain name for a website that contains links and information about Catalina Island in California. The site provides links to sites relating to vacations on Catalina and cruises to Catalina, as well as general travel-related websites.
Complainant alleges that as
Complainant is engaged in the travel industry, these sites advertise and sell
products and services in competition with Complainant. Thus, it submits that Respondent has
registered and is using the disputed domain name unlawfully to divert and
siphon off visitors seeking Complainant
B. Respondent
In an e-mail communication to the
National Arbitration Forum on July 2, 2007 Respondent states:
“I have no interest in the
domain name, and am not the first owner of the domain name. I purchased it when I saw it available from
an expired domain name company. This
domain has been registered before.
Again - I have no interest in
the domain. Your party may have it.
There is no need for any
further proceeding.”
FINDINGS
For the reasons set out below the Panel is of
the view that by virtue of Respondent’s unequivocal consent to the transfer of
the disputed domain name that relief be granted and the disputed domain name
transferred to Complainant.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain
Name Dispute Resolution Policy (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 sets out three elements that need to be proved under the
Policy. However, for the reasons set out
below, such analysis is not required in this case.
DECISION
As noted above, although Respondent’s
electronic submission was received in a timely manner, it failed to submit a
hard copy as required by ICANN Rule 5.
Therefore the Panel has sole discretion as to the amount of weight given
to the Response. See Telstra
Corp. v. Chu, D2000-0423 (WIPO June 21,
2000) (finding that any weight to be given to the lateness of the response is
solely in the discretion of the panelist).
The Panel does however have discretion to accept the Response. See Bd. of Governors of the Univ. of Alberta v. Katz, D2000-0378 (WIPO June 22, 2000) (finding that a panel may consider a response which was one day late, and received before a panelist was appointed and any consideration made); see also Gaiam, Inc. v. Nielsen, FA 112469 (Nat. Arb. Forum July 2, 2002) (“In the interest of having claims decided on the merits and not by default and because Complainant has not been prejudiced in the presentation of its case by the late submission, Respondent’s opposition documents are accepted as timely.”).
While certain panels have declined
to accept non-complying submissions or evidence this is a situation where the
e-mail communication with the Forum is both directly relevant and before the
parties and the Panel. For this reason
it is admitted and taken into account by the Panel.
Consent to Transfer the Subject Domain Name
Respondent’s Response clearly indicates
that Respondent has “no interest in the [disputed] domain name.” The Panel finds that this Response indicates
that Respondent does not contest any of Complainant’s allegations regarding the
<queen-elizabeth-2.com> domain
name. Rather, it appears that
Respondent has consented to judgment in favor of Complainant and authorized the
immediate transfer of the subject domain name through the language of the
Response, which includes “I have no interest in the domain. Your party may have it.”
The Panel finds that in a
circumstance such as this, where Respondent has unequivocally consented to the
transfer of the disputed domain name, it should forego the traditional UDRP
analysis and order the immediate transfer of the domain name. See Boehringer Ingelheim Int’l GmbH v.
Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003)
(transferring the domain name registration where the respondent stipulated to
the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc.,
FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both
asked for the domain name to be transferred to the Complainant . . . Since
the requests of the parties in this case are identical, the Panel has no scope
to do anything other than to recognize the common request, and it has no
mandate to make findings of fact or of compliance (or not) with the Policy.”); see
also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24,
2005) (“[U]nder such circumstances, where Respondent has agreed to comply with
Complainant’s request, the Panel felt it to be expedient and judicial to forego
the traditional UDRP analysis and order the transfer of the domain names.”).
Having so found the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <queen-elizabeth-2.com> domain name
be TRANSFERRED from Respondent to Complainant.
Dated: July 23, 2007
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