Holland America Line N.V. and Seabourn Cruise Line Limited v. Liu Fen
Claim Number: FA2112001978008
Complainant is Holland America Line N.V. and Seabourn Cruise Line Limited (“Complainant”), represented by Jaime Rich Vining of Friedland Vining, P.A., Florida, USA. Respondent is Liu Fen (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hollandamerica.xyz>, registered with Sav.Com, Llc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 22, 2021; the Forum received payment on December 22, 2021.
On December 22, 2021, Sav.Com, Llc confirmed by e-mail to the Forum that the <hollandamerica.xyz> domain name is registered with Sav.Com, Llc and that Respondent is the current registrant of the name. Sav.Com, Llc has verified that Respondent is bound by the Sav.Com, Llc 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 December 27, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 18, 2022 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@hollandamerica.xyz. Also on December 27, 2021, 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 January 24, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <hollandamerica.xyz> domain name is confusingly similar to Complainant’s HOLLAND AMERICA mark.
2. Respondent does not have any rights or legitimate interests in the <hollandamerica.xyz> domain name.
3. Respondent registered and uses the <hollandamerica.xyz> domain name in bad faith.
B. Respondent did not file a Response.
Complainant holds a registration for the HOLLAND AMERICA CRUISES and HOLLAND AMERICA LINE marks through its registrations with the United States Patent and Trademark Office (“USPTO”) (Reg. 995,488, registered Oct. 8, 1974; Reg. 2,326,802, registered Mar. 7, 2000).
Respondent registred the <hollandamerica.xyz> domain name on Nov. 15, 2021, and offers it for sale.
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 Panel finds that Complainant has rights in the HOLLAND AMERICA CRUISES and HOLLAND AMERICA LINE marks through its registrations with the USPTO. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <hollandamerica.xyz> domain name uses the dominant feature of the HOLLAND AMERICA CRUISES and HOLLAND AMERICA LINE marks and simply adds a gTLD. Using most of a mark and adding a gTLD does not distinguish a disputed domain name from the mark it incorporates. See Sainato's Restaurant and Catering Limited v. chen xue ming, FA 1781748 (Forum June 4, 2018) (finding the <sainatos.com> domain name is confusingly similar to the SAINATO’S RESTAURANT mark as it “appends the gTLD “.com” to an abbreviated version of the mark.”) Therefore, the Panel finds that Respondent’s <hollandamerica.xyz> domain name is identical or confusingly similar to Complainant’s HOLLAND AMERICA CRUISES and HOLLAND AMERICA LINE marks.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent is not commonly known by the <hollandamerica.xyz> domain name. Complainant has. Not authorized or licensed Respondent to use its HOLLAND AMERICA marks. The WHOIS of record identifies Respondent as “Liu Fen.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant also argues that Respondent does not use the <hollandamerica.xyz> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), inactively holding a disputed domain name and only offering it for sale is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (“UDRP precedent is clear that auctioning domains does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of domains.”); see also Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Complainant provides screenshots of the disputed domain name’s resolving website, which features no content but an advertisement to buy the domain name. The Panel finds that this is not a bona fide offering of goods or services, or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <hollandamerica.xyz> domain name in bad faith by offering it for sale. Under Policy ¶ 4(b)(i), offering a domain name for sale may be evidence of bad faith registration with the intent to sell. See Airbnb, Inc. v. Super Privacy Service LTD c/o Dynadot, FA 1821386 (Forum Jan. 10, 2019) (“Complainant argues that Respondent registered and uses the <airbnbb.com> domain name in bad faith by offering it for sale. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).”). The Panel notes that there is an offer to sell on the website at the disputed domain names. Therefore, the Panel finds bad faith under Policy ¶ 4(b)(i).
Complainant also argues that Respondent registered and uses the <hollandamerica.xyz> domain name in bad faith under Policy ¶ 4(a)(iii) by registering the disputed domain name with its famous mark and failing to make any active use of the domain name. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii) because Respondent registered the disputed domain name with knowledge of Complainant’s rights in the HOLLAND AMERICA marks, and also failed to make any active use of the domain name. See Hewlett-Packard Co. v. Martineau, FA 95359 (Forum Aug. 30, 2000) (“Respondent’s failure to submit an assertion of good faith intent to use the domain name, in addition to the passive holding of the domain name, reveal that Respondent registered and uses the domain name in bad faith.”); see also AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hollandamerica.xyz> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 25, 2022
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