WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Double Eagle Brands N.V., Stichting DEB v. Click Cons. Ltd
Case No. D2007-1057
1. The Parties
The Complainant is Double Eagle Brands N.V. and Stichting DEB, of Curacao and The Netherlands respectively, represented by De Brauw Blackstone Westbroek N.V., The Netherlands.
The Respondent is Click Cons. Ltd, of Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name is registered with BelgiumDomains, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 18, 2007. On July 20, 2007, the Center transmitted by email to BelgiumDomains, LLC a request for registrar verification in connection with the domain name(s) at issue. On July 21, 2007, BelgiumDomains, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. A complaint deficiency notification was sent to the Complainant by the Center on July 25, 2007. The Center verified that the Complaint and the Amendment 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”).
An Amendment to the Complaint was received via email and fax on July 26, 2007.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint and Amendment to the Complaint, and the proceedings commenced on July 27, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 16, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 22, 2007.
The Center appointed Clive L. Elliott as the sole panelist in this matter on August 28, 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
The Complainant is the proprietor of a number of trademark registrations for KETEL ONE for inter alia alcoholic beverages, including the following:
(i) The trademark registered with the USPTO, registration number 73465621, registration date August 27, 1985;
(ii) The trademark registered with the USPTO, registration number 76020695, registration date February 12, 2002;
(iii) The trademark registered with OHIM, registration number 511626, registration date April 16, 1999.
Details of other registrations were provided.
The KETEL ONE trademarks have been intensively used in commerce in the past decades, worldwide, including in the United States and in Europe, and continue to be used. The KETEL ONE trademarks are used on Complainant’s website .
The Respondent registered the domain name on June 5, 2007.
5. Parties’ Contentions
A. Complainant
Complainant states that they have expended considerable time, effort and money in advertising, promoting and selling premium alcoholic beverages, and premium vodka in particular, in connection with the KETEL ONE trademarks. In 2005 alone, approximately USD 17.9 million was spent on advertising for the KETEL ONE trademark in the United States.
It is contended that as a result, KETEL ONE has become a global brand and KETEL ONE vodka is in turnover the number 8 largest seller in the market segment for vodka in the United States. It is contended KETEL ONE is famous throughout the world and embodies substantial goodwill.
Complainant asserts that the term “ketel one” has no descriptive meaning in the English language and was created by Complainant for use in connection with their products.
It is submitted that the disputed domain name is phonetically identical and visually confusingly similar to Complainant’s registered trademarks. It is contended that Respondent is in the habit of registering domain names that are, despite their misspellings or alterations, identical or confusingly similar to existing third party and trademark registrations; the Respondent is a known typo-squatter.
There is no evidence that Respondent is using, or planning to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. Furthermore, Respondent is not commonly known by a name similar to the domain name and Respondent is not making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain or without misleading to divert consumers.
Complainant states that Respondent uses the domain name for the purpose of renting out sponsored links to business entities targeting Complainant’s customers that are looking for Complainant’s website but have misspelled Complainant’s domain name.
In the present case, Respondent uses the domain name for a website containing a wide variety of sponsored links. Some of these links divert visitors to websites of suppliers of alcoholic beverages, i.e. goods for which the Complainant’s trademarks have been registered and used. The Complainant therefore asserts that the domain name was registered and is used primarily for the purpose of renting out pay-per-click advertising links.
B. Respondent
The Respondent did not reply to the Complainant’s contentions. As a result, the Panel is only able to assess the evidence and submissions filed by the Complainant. Likewise, in the absence of any contrary assertion or dispute those assertions and submissions are presumed to be, prima facie, correct.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the domain name Complainant must prove that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Having considered the Complaint, the Panel finds that all requirements of paragraph 4(a) of the Policy are met.
A. Identical or Confusingly Similar
The evidence on this element is clear. Complainant operates a significant business under a distinctive trademark. It is reasonable to infer that they attract a large number of customers and other interested parties to their website and have a trademark that is attractive for linking purposes. There can be no doubt that Complainant has traded in a significant way for many years and that it has the necessary rights in and to the trademark KETEL ONE.
The disputed domain name very similar to Complainant’s trademark apart from the misspelling of KETEL rendered in the form KETLE.
Accordingly, the Panel has no difficulty in finding that the first element of the Policy has been met.
B. Rights or Legitimate Interests
As has been noted previously, once a complainant makes a prima facie case the burden shifts to the respondent to establish rights or legitimate interests in the disputed domain name; see Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 (finding that once the complainant asserts that the respondent does not have rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name). The Panel concludes that, on the basis of the Complaint, that a prima facie case is established under this ground.
In terms of whether the Respondent might have a legitimate purpose for its activities, Complainant points out that Respondent uses the domain name for a website containing a variety of sponsored links, some of which divert visitors to websites of suppliers of alcoholic beverages. It thus appears that the domain name is used for the purpose of renting out pay-per-click advertising links.
Complainant contends that the disputed domain name is phonetically identical and visually confusingly similar to Complainant’s registered trademarks. There is obvious force in this contention. The Panel concludes that the purpose of the Respondent’s conduct is to make commercial gain and to misleadingly divert consumers. See ACCOR v Steve Kerry/North West Enterprise, Inc.,WIPO Case No. D2006-0649 (holding that the link farm was not a legitimate non-commercial or fair use of domain names and that the Respondent must have known of the Complainant’s rights in the name and, therefore, “could not have claimed any such rights or interests”).
On the basis of the evidence and this un-contradicted assertion, it is reasonable to infer that no right or legitimate interest exists on the part of the Respondent and that the Respondent’s motives are not legitimate.
Thus the Panel is satisfied that the second element of the Policy has been met.
C. Registered and Used in Bad Faith
The registration of a well-known trademark and its unexplained use, in conjunction with link farms/pay-per-click advertising links, has in some cases been determined to be bad faith. See Deutsche Telekom AG,WIPO Case No. D2005-1136 (finding the respondent’s link farm to be in bad faith and stating that “it is now a well known practice to display on a web page or search engine various links to other commercial websites, every link activated by an Internet user enables the host of the search engine to collect financial remuneration proportional to the number of connections … [p]revious panels have established that this practice constitutes bad faith use.”).
Given what appears to be the substantial reputation and goodwill in the Complainant’s trademark and through its registration, the Panel finds that the disputed domain name was in all likelihood chosen and is now being used for the reasons contended by Complainant.
The Panel is therefore satisfied that the third element of the Policy has been met.
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 be transferred to the Complainant.
Clive L. Elliott
Sole Panelist
Dated: September 11, 2007
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