WIPO Domain Name Decision DNL2018-0020 for natuliquenederland.nl
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION NATULIQUE Ltd. (Global Corporate Headquarter) v. Out B.V., Try Case No. DNL2018-0020 1. The Parties
Complainant is NATULIQUE Ltd. (Global Corporate Headquarter) of Aarhus, Denmark, represented by Stig Bundgaard, Denmark.
Respondent is Try Out B.V. of Wanssum, Netherlands, represented by Richard Bindels. 2. The Domain Name and Registrar
The disputed domain name is registered with SIDN through TransIP B.V. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 10, 2018. On April 10, 2018, the Center transmitted by email to SIDN a request for registrar verification in connection with the disputed domain name. On April 11, 2018, SIDN transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on April 13, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on April 17, 2018. The Center verified that the Complaint together with the Amended Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the "Regulations"). The Center received a communication from Respondent on April 19, 2018.
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 20, 2018. In accordance with the Regulations, article 7.1, the due date for Response was May 10, 2018. The Response was filed with the Center on May 8, 2018.
On May 14, 2018, SIDN commenced the mediation process. On June 6, 2018 SIDN informed parties that the dispute had not been solved in the mediation process.
The Center appointed Gregor Vos as the panelist in this matter on June 14, 2018. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background
Complainant is an internationally operating company in the beauty and healthcare sector.
Complainant is the owner of the following trademark registrations:
- United States of America trademark registration No. 5140567 for NATULIQUE, registered on February 14, 2017;
- International trademark registration No. 983705 for NATULIQUE, registered on August 20, 2008, designating, inter alia, the Benelux (the "Trademark").
Complainant has further registered the domain name in 2008, which wholly incorporates the above trademarks.
Respondent is a Dutch company that is active in the field of personal styling, providing education in the field of personal styling, as well as developing and designing products, buying and selling biological hair products, food products, and cosmetics.
The disputed domain name was first registered on December 18, 2014, and resolves to a webshop offering for sale products under the Trademark.
Respondent has provided an extract of the Dutch company register, evidencing that Respondent is statutorily named Try Out B.V. However, from both the Complaint and the Response it follows that the Parties both refer to Respondent as "Green Company Bio Distribution and Try Out BV". For the sake of clarity, the Panel will refer to Respondent as "Try Out".
Although no evidence is provided, it is established between the Parties that Complainant and Respondent in the past had entered into a supplier-distributor agreement with respect to Complainant's products marketed under the Trademark NATULIQUE for the Netherlands (the "Distribution Agreement"). From the statements of the Parties in the Complaint and the Response respectively it appears before the Panel that it is also established between the Parties that this agreement was in place from 2010 until January 2018.
To this end, Respondent states to have operated under the trade name "NATULIQUE Nederland" since 2010. From the extract of the Dutch company register, it follows that this trade name was recorded in the register in mid-2015. 5. Parties' Contentions A. Complainant
Complainant asserts that the Domain Name is confusingly similar to the Trademark as the Domain Name consists merely of the Trademark and the country name "nederland" that describes the geographical area in which Complainant's registered Trademark is designated. According to Complainant, the descriptive term in the Domain Name provides that the Domain Name is comparable and even identical to Complainant's Trademark.
Furthermore, Complainant states that Respondent has no rights or legitimate interest in the Domain Name as it is confusingly similar to the Trademark and that Respondent intentionally confuses consumers. As a result, according to Complainant, consumers are diverted from Complainant's website to Respondent's website. Complainant further argues that Respondent is the owner of the companies Green Company Bio Distribution and Try Out B.V., and uses the Domain Name for commercial purposes, therefore taking illegitimate advantage of the Domain Name. Moreover, Complainant states that Respondent registered the Domain Name several years after Complainant registered its Trademark and its similar domain name . According to Complainant, the Domain Name solely serves to mislead consumers. Additionally, Complainant states that Respondent is aware of the existence of the Trademark as a result of the Distribution Agreement.
Finally, Complainant asserts that the Domain Name has been registered and is being used in bad faith. Complainant contends that Respondent intentionally attempted to attract customers by creating a likelihood of confusion between the Domain Name and the Trademark, even though the Distribution Agreement has been terminated. Complainant further holds that Respondent was aware of the Trademark at the time of registration of the Domain Name and nevertheless wanted to benefit from diverting customers from to . Complainant concludes that Respondent intentionally attempts to capitalize upon and create a likelihood of confusion with Complainant's Trademark. In the view of Complainant, Respondent's bad faith is also evidenced from the fact that Respondent registered the Domain Name using the same email address that was used for corresponding with Complainant when the Distribution Agreement was still in force. B. Respondent
Respondent states that the Distribution Agreement was in force from 2010. According to Respondent, Complainant terminated the Distribution Agreement unexpectedly in early 2018 and Respondent does not agree with the termination. However, Respondent states that it understands that it cannot use the trade name "Natulique Nederland" anymore in the future. Respondent argues that it has built its business and customer base in the Netherlands using the trade name "Natulique Nederland" to sell products under the trademark NATULIQUE.
Furthermore, Respondent argues that there is no intentional confusion. Respondent states that Complainant has never prohibited Respondent to use the trade name "Natulique Nederland", and that Complainant even encouraged Respondent to use the Trademark in its position as a distributor. Respondent notes in this respect that it received a shipment of products bearing the Trademark still on December 5, 2017. Moreover, Respondent argues that for eight years it has actively acquired customers for Complainant and that Complainant seeks to take over the Dutch market without due settlement of the previous Distribution Agreement.
Finally, Respondent argues that the Domain Name and trade name are not intentionally used. The trade name "Natulique Nederland" is connected to Respondent and it wishes to continue distributing products of Complainant. Respondent points to previously intense collaboration between Respondent and Complainant. Respondent continues by stating t