WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
DFDS A/S v. NOLDC INC
Case No. D2006-1070
1. The Parties
The Complainant is DFDS A/S, Copenhagen, Denmark, represented by Zacco Denmark A/S, Denmark.
The Respondent is NOLDC INC, New Orleans, Louisiana, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with Domain Contender, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August�24,�2006. On August�24,�2006, the Center transmitted by e-mail to Domain Contender, LLC a request for registrar verification in connection with the domain name at issue. On August�30,�2006, Domain Contender, LLC transmitted by e-mail to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing and technical contact. 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 August�31,�2006. In accordance with the Rules, paragraph 5(a), the due date for Response was September�20,�2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September�22,�2006.
The Center appointed Christos A. Theodoulou as the sole panelist in this matter on October�4,�2006. 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
The Complainant, DFDS A/S (“Det Forenede Dampskibs-Selskab”) is a shipping company in Denmark, founded in 1866. Listed on the Copenhagen Stock Exchange, it is a large North European liner shipping company with activity in a dozen of countries, mainly in Northern and Western Europe. Passenger activities are operated by DFDS Seaways, whose main customer groups include holidaymakers travelling by car, Mini Cruise passengers, group travel and transport and conference passengers.
According to the non-contested allegations of the Complainant, the word “DFDS” is protected as a trademark in a large number of countries worldwide. The examples provided by the Complainant, apart from the main International Registration no. 353243 with protection going back to 1996, consist of a whole series of “DFDS” word-marks and logos in a variety of classes, including the relevant Class 39 for travel services.
The Panel is unaware of any information with regard to the Respondent.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to its trademarks, that the Respondent has no legitimate interests or rights in the disputed domain name and that the Respondent registered and is using the disputed domain name in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Before engaging itself into the usual threefold discussion of Paragraph 4(a) of the Policy, the Panel will briefly address the procedural issue related to the default of the Respondent. The implications of a default in this case are obvious: since the Complainant has the burden of proof, according to Paragraph 4(a) of the Policy (“In the administrative proceeding, the Complainant must prove that each of these three elements are present”), the Panel may not just grant the Complainant’s request automatically, but it has to examine instead the evidence presented to determine whether or not the Complainant has proved its case, as required by the Policy (See FNAC v. Gauthier Raymond, WIPO Case No. D2004-0881; F. Hoffmann-La Roche AG v. N/A WIPO Case No. D2006-0512).
The Panel shall now proceed to the analysis of the evidence in this case, based on the three elements of Paragraph 4(a) of the Policy.
A. The contested domain name is identical or confusingly similar to trademarks, in which the Complainant has rights
The Complainant has presented evidence that it owns the rights to the trademark DFDS. The mere fact that the Respondent has added to this mark the common word “travel” does not affect the essence of the matter: the contested domain name wholly incorporates the registered trademark DFDS and this is by itself sufficient to establish the criterion of similarity for purposes of the Policy (See e.g. Eauto, L.L.C. v. Eauto Parts, WIPO Case No. D2000-0096; Speedo Holdings B.V. v. LAKS Cartegena Handels GmbH, WIPO Case No. D2005-1325). Moreover, the fact that the Complainant’s main business is the provision of travel services reinforces the above syllogism.
In view of the above, the Panel finds that the Complainant has discharged its burden of proof on this point and holds that the disputed domain name is confusingly similar to the Complainant’s trademarks.
B. The Respondent has no rights or legitimate interests in the contested domain name
Under Paragraph 4(c) of the Policy any of the following circumstances, if found by the Panel to be proved based on its evaluation of the evidence presented, shall demonstrate a registrant’s rights to and legitimate interest in a domain name:
I. Demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services prior to the dispute: in this case, the Respondent is using the trademark of the Complainant as a domain name for diverting people to other websites, through search category headings containing various links to third party vendors. These websites offer also travel services, which obviously compete directly with the Complainant’s travel services. All the above stand in the absence of any sort of agreement or relation between the Complainant and the Respondent; this behavior of the Respondent may not be viewed as a bona fide offering of services, as it has already been decided in Cr�dit Suisse Group v. Kingdomdatanet Networks, Inc., WIPO Case No. D2004-0846 and by this panel in Cr�dit Industriel et Commercial S.A., Banque Scalbert Dupont S.A. v. LaPorte Holdings, Inc., WIPO Case No. D2004-1110.
II. An indication that the registrant has been commonly known by the disputed domain name, even if it has acquired no trademark rights: there is no such indication from the record.
III. Legitimate non-commercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark at issue: as alleged by the Complainant in its submissions, the Respondent, by acting in the way described on point I above, uses the disputed domain name for commercial gain. The misleading redirection to a website where random travel services are offered might also tarnish the trademarks and brand image of the Complainant.
As a conclusion on this point, the Panel holds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. The Respondent registered and used the contested domain name in bad faith
The Complainant’s argumentation aims to establish mainly Paragraph 4(b)(iv) of the Policy, which would be enough to prove the Respondent’s bad faith, since the four circumstances mentioned in that Paragraph will separately evidence bad faith registration and use.
The Complainant asserts that the Respondent must have had good knowledge of DFDS’s reputation at the time of the disputed domain name’s registration (November�30, 2004). Indeed, the Respondent’s website provides numerous links to third party websites, many of which sell and offer for sale products and services that directly compete with the Complainant. Where a respondent is found to intentionally attempt to divert Internet users to competing websites, in order to generate traffic and sales commissions for its own commercial gain, such conduct should be recognized as constituting bad faith under the Policy. Further, the Respondent’s website contains headings in both Danish and English, a fact that could mislead consumers into thinking that the site is related to the Complainant, a Danish Company.
The fact that the Respondent has continued to use the disputed domain name, in order to redirect consumers to websites of direct competitors, shows that it is intentionally attempting to attract them for commercial gain, by creating a likelihood of confusion with the Complainant’s trademark DFDS as to the source, affiliation and endorsement of the Respondent’s website (See also Pfizer Inc. v. jg a/k/a Josh Green, WIPO Case No. D2004-0784; F. Hoffmann-La Roche AG v. N/A, WIPO Case No. D2006-0512).
The Complainant alleges, and the Panel concurs, that the Respondent’s conduct could cause to the Complainant commercial detriment, in terms of consumer confusion, lost sales and goodwill, and the loss of general ability to communicate and transact with its existing and potential customers.
Accordingly, the Panel holds that the Respondent registered and used the disputed domain name in bad faith.
7. Decision
The Complainant has successfully proved that the contested domain name is confusingly similar to several trademarks in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the contested domain name and that the Respondent registered and used the contested domain name in bad faith.
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 at issue, , be transferred to the Complainant.
Christos A. Theodoulou
Sole Panelist
Dated: October�13,�2006
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