WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION DFDS A/S v. Klan Jored Case No. D2009-0390 1. The Parties
Complainant is DFDS A/S of Copenhagen, Denmark, represented by Zacco Denmark A/S, Denmark.
Respondent is Klan Jored of Kamen, Austria. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 24, 2009. On March 25, 2009, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name.
On March 27, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR transmitted by email to the Center its verification response confirming that 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” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on April 2, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was April 22, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on May 4, 2009.
The Center appointed Carol Anne Been as the sole panelist in this matter on May 5, 2009. 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, DFDS A/S, a shipping company headquartered in Copenhagen, Denmark, uses the domain name in connection with its passenger liner travel services. Complainant's DFDS SEAWAYS mark (hereinafter the “Mark”) is registered as a European Union Community trademark for a number of transport related services, including, inter alia, passenger travel services, shipping of goods, transport brokerage, freight brokerage, storing, packaging wrapping and delivery of goods, and quantity control and condition control of goods in connection with transport, loading, unloading and storage. The Mark claims priority from February 8, 2005 and has a series of national seniorities indicated in several European countries, including Denmark, Germany and Lithuania. The Mark is also registered in the Russian Federation for, inter alia, transport services, with priority from July 25, 2001.
Respondent registered the domain name (hereinafter, the “Domain Name”) on February 4, 2009. The Domain Name leads to a website presenting information about “DFDS Seaways Inc.” (hereinafter, “DSI”), which indicates that DSI is a freight forwarding agent established in Vilnius, Lithuania in 2002 and has offices in the Ukraine, the Russian Federation, Lithuania and Germany. 5. Parties' Contentions A. Complainant
(i) Domain Name Identical or Confusingly Similar to Complainant's Mark
Complainant contends that the Domain Name is confusingly similar to the Mark, and asserts that the Domain Name and the Mark are “quasi-identical” inasmuch they differ only by addition of a hyphen and “.biz” to the Mark.
(ii) Respondent's Rights or Legitimate Interests in the Domain Name
Complainant asserts that Respondent has no rights or legitimate interest in the Domain Name. Complainant further contends and submits evidence that (1) Respondent provided false contact information when registering the Domain Name; and (2) contact information including business addresses and telephone numbers provided on the website associated with the Domain Name (hereinafter, the “DSI Website”) are false.
(iii) Domain Name Registered and Used in Bad Faith
Complainant contends that Respondent has registered and is using the Domain Name in bad faith. Complainant asserts that Respondent was aware of Complainant's Mark and company name at the time of registering the Domain Name, because Respondent, in addition to using the Mark as part of the Domain Name, includes on the DSI Website a slightly modified form of Complainant's registered graphic trademark (of a stylized ship's smoke stack emblazoned with a Maltese cross). Complainant contends that Respondent is using the Domain Name for commercial gain to in an attempt to deceive customers into thinking that Respondent's website is associated with Complainant. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:
(i) the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and used in bad faith. A. Identical or Confusingly Similar
Complainant has established that it holds rights in the Mark and uses the Mark in connection with, at least, passenger travel services.
The additions of a hyphen and “.biz” to the Mark in forming the Domain Name are not distinguishing features. See InfoS, Inc. v. Tenenbaum Ofer,WIPO Case No. D2000-0075.
Accordingly, the Panel finds that the Domain Name is confusingly similar to Complainant's Mark. B. Rights or Legitimate Interests
Complainant is required by Policy paragraph 4(a)(ii) to prove that Respondent has no rights or legitimate interests in the Domain Name.
The overall burden of proof rests with Complainant. However, in light of the difficulty of proving a negative proposition, and considering that the nature of a respondent's rights or interests is best known to the respondent, a complainant is only required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such a prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP. See Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
Here, there is no evidence that Respondent has any rights or legitimate interest in the Domain Name. Complainant established a prima facie case that Respondent lacks rights or legitimate interests by providing unrebutted evidence that the DSI entity depicted in Respondent's website is fictitious inasmuch as contact information provided on the website appears to have included only inoperative telephone numbers and street addresses that were non-existent or unassociated with the purported DSI entity.
Because Respondent failed to respond to the Complaint, Complainant's prima facie case that Respondent lacks rights or legitimate interests stands unrebutted.
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to show that the domain name has been registered and used in bad faith. A finding of both bad faith registration and bad faith use is required.
Respondent registered the Domain Name with false contact information. This alone has been found sufficient to support an inference of registration in bad faith. See Weetabix Limited v. Mr. J. Clarke,WIPO Case No. D2001-0775.
Respondent's use within the DSI Website of an image confusingly similar to Complainant's registered graphic trademark (of a ship's smoke stack bearing a Maltese cross) is further evidence that Respondent had actual knowledge of Complainant's trademarks.
Finally, the “.biz” Generic Top Level Domain requires domain names to be restricted to domain names that are or will be used primarily for a “bona fide business or commercial purpose”. Unrebutted evidence shows that Respondent's DSI Website is not connected to any bona fide business or commercial purpose, inasmuch as it deceptively represents a non-existent business entity.
Accordingly, the Panel finds that Respondent registered and used the Domain Name 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, be transferred to Complainant .
Carol Anne Been
Sole Panelist
Dated: May 19, 2009
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