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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Carnival Plc v. Prime Choice Web Hosting

Case No. D2007-0807

 

1. The Parties

The Complainant is Carnival Plc, Carnival House, London, United Kingdom of Great Britain and Northern Ireland, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, United States of America.

The Respondent is Prime Choice Web Hosting, Virginia, United States of America.

2. The Domain Name and Registrar

The disputed domain name <qe2.com> is registered with Tucows Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 2, 2007. On June 5, 2007, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the domain name at issue. On June 5, 2007 Tucows Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 the Respondent of the Complaint, and the proceedings commenced on June 12, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 2, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 3, 2007.

The Center appointed Peter G. Nitter as the sole panelist in this matter on July 10, 2007. 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, and its related companies, provide cruise and leisure travel services, and is one of the world’s largest providers of these kinds of services.

One of Complainant’s brands, Cunard Line, launched the cruise ship Queen Elizabeth 2 in 1969. Queen Elizabeth 2 is also commonly referred to as the QE2 and Complainant has registered the trademark QE2 in several jurisdictions, including in the United States which is also the domicile of Respondent.

Complainant has also registered the trademark QUEEN ELIZABETH 2 in several jurisdictions.

The disputed domain name <qe2.com> was registered by Respondent on August 10, 2000.

 

5. Parties’ Contentions

A. Complainant

Complainant maintain that it is the owner of numerous trademark registrations and pending applications throughout the world for the trademarks QE2 and QUEEN ELIZABETH 2 for an extensive range of goods and services. According to Complainant, the Queen Elizabeth 2 is considered the most famous ocean liner in the world.

Complainant further contends that the disputed domain name is identical to its QE2 mark.

Complainant also argues that the disputed domain name is confusingly similar to its trademark QUEEN ELIZABETH 2.

According to Complainant, Respondent is not generally known by the disputed domain name and has not acquired any rights to the disputed domain name.

Complainant maintains that it has not licensed Respondent to use the QE2 or the QUEEN ELIZABETH 2 trademarks in connection with a website or for any other purpose.

Respondent has, according to Complainant, due to its passive holding, not used the disputed domain name in connection with a bona fide offering of goods and services

On this background Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name.

Further, Complainant holds that Respondent, due to the widespread fame of the QE2 and QUEEN ELIZABETH 2 trademarks, had actual knowledge of Complainant’s rights and in addition to this had constructive knowledge of Complainant’s rights due to Complainant’s registration of the mentioned trademarks. Complainant thus asserts that Respondent registered the disputed domain name in bad faith.

According to Complainant, the fact that the website connected to the disputed domain name only contains the phrase “Testing 123456 testing” proves that Respondent is not actively using the disputed domain name.

Due to Respondent’s actual knowledge of Complainant’s rights, and the fact that Respondent has failed to develop a website corresponding to the <qe2.com> domain name, Complainant’s is of the opinion that Respondent has used the disputed domain name in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

From the evidence presented, the Panel finds that Complainant through its registration and use of the trademarks QE2 and QUEEN ELIZABETH 2 has demonstrated rights to these trademarks.

Previous Panel decisions under the UDRP have concluded that the generic top level domain denominator is irrelevant when determining whether a disputed domain name is similar or confusingly similar to a protected trademark. Thus, the first issue only concerns the part of the disputed domain name which consists of “qe2”.

The disputed domain name incorporates in full the distinctive trademark QE2. The Panel therefore finds that the disputed domain name is identical to Complainant’s trademark QE2.

Further, the term “qe2” does not to the Panel’s knowledge hold any meaning on its own, except in reference to the term “Queen Elizabeth 2”. By failing to respond, Respondent has not proffered any alternate view.

The Panel therefore accepts Complainant’s assertion that QE2 is an abbreviation of Complainants trademark QUEEN ELIZABETH 2.

On this background the Panel finds that the disputed domain name is identical to the Complainant’s QE2 trademark and is confusingly similar to Complainant’s trademark QUEEN ELIZABETH 2.

B. Rights or Legitimate Interests

Respondent has, according to the Complainant, not been granted any license or right to use Complainant’s marks in any manner by the Complainant, and is not commonly known by the marks.

Respondent has not filed any response arguing that it has rights to, or legitimate interests in, the disputed domain name. None of the Complainant’s assertions have thus been contested by the Respondent.

In the event that any such rights, connections or affiliations existed, it would generally be relatively easy for a respondent to substantiate this, while it is generally difficult for a complainant to prove the negative that Respondent has no such rights. For this reason, previous decisions under the UDRP have, in the event of a Respondent’s default, found it sufficient for Complainant to make a prima facie showing of its assertion pursuant to paragraph 4(c) of the Policy.

The Panel finds that the circumstances mentioned and evidenced by Complainant are sufficient to establish a prima facie showing that Respondent has no rights or legitimate interests in the domain name at issue.

As Respondent has not rebutted this by demonstrating any of the circumstances that constitute rights to, or legitimate interests in, the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy, the Panel concludes that the Respondent does not have any rights or legitimate interests in respect of the domain name at issue.

C. Registered and Used in Bad Faith

The last element for the Complainant to demonstrate is that the domain name has been registered, and is being used, in bad faith, in accordance with paragraph 4(a) (iii) of the Policy.

The contested domain name was registered by the Respondent on August 10, 2000. The Complainant has used the trademark QE2 in the United States of America, in which Respondent has listed a contract address, at least since April 7, 1987 when the trademark was first registered in that country. Considering the widespread use and fame of Complainant’s trademarks, the Panel finds it highly unlikely that the Respondent, at the time of registration, was not familiar with the Complainant’s trademark QE2, as well as the fact that QE2 is an abbreviation of the trademark QUEEN ELIZABETH 2.

The Panel thus finds that the contested domain name was registered in bad faith.

According to paragraph 4(a) (iii) of the Policy, the domain name at issue must, as already mentioned, also have been used in bad faith for the Panel to find that the conditions in paragraph 4(a) (iii) are fulfilled.

The Panel finds it evidenced that the website associated with the disputed domain name only contained the message “Testing 123456 testing”. The website currently appears to contain the following words only: “Under construction qe2.com”. From this the Panel draws the conclusion that Respondent is not actively using the contested domain name.

According to UDRP practice this does not, however, of itself prevent a finding of bad faith. This is reflected in the WIPO Overview Paragraph 3.2 and in UDRP practice. See, e.g., Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. Rather, the Panel is required to examine all the circumstances of the case to determine if the domain name is being used in bad faith in accordance with paragraph 4(a) (iii) of the Policy.

In this case, the trademark contained in the contested domain name is, in the Panel’s view, well-known, as already mentioned. Additionally there is no response from the Respondent which, consistent with panel precedent cited in to the WIPO Overview paragraph 3.2, may in appropriate circumstances be an indication of bad faith use. Furthermore, it is difficult to conceive of any plausible actual or contemplated actual use of the domain name by the Respondent that would not be illegitimate or an infringement of the Complainant’s trademarks rights.

On this basis the Panel does not find it likely that Respondent could use the contested domain names in good faith.

The Panel therefore finds that the contested domain is also being used in bad faith.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <qe2.com>, be transferred to the Complainant.

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Peter G. Nitter
Sole Panelist

Dated: July 24, 2007