Complainant is DFDS A/S, Copenhagen, Denmark, represented by Zacco Denmark A/S, Denmark.
Respondent is Milena Valenskaya, Kiev, Ukraine. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with the Center of Ukrainian Internet Names (UKRNAMES) (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 1, 2011. On June 1, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 8, 2011, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
On June 10, 2011, the Center notified Complainant both in English and Russianthat as the language of the registration agreement for the Domain Name was Russian (as per information provided by the Registrar), Complainant would need to either provide satisfactory evidence of an agreement between Complainant and Respondent to the effect that the proceedings should be in English, submit the Complaint translated into Russian, or submit a request for English to be the language of the administrative proceedings. On June 14, 2011, Complainant submitted a request for English to be the language of the proceedings. Complainant based its request on the fact that the website at the Domain Name was entirely in the English language and contained and invitation to interested persons to communicate with Respondent in English. According to Complainant, these circumstances showed that Respondent was able and willing to communicate in English. Respondent did not submit her comments.
The Center verified that the Complaint together with the language request 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 June 17, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was July 7, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 11, 2011.
The Center appointed Assen Alexiev as the sole panelist in this matter on August 3, 2011. 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.
In relation to the language of the proceedings, the Panel notes Complainant’s arguments. Indeed, the evidence shows that the website associated to the Domain Name is entirely in English, including its section which invites interested parties to send feedback to Respondent. Also, Respondent has not objected to Complainant’s request the proceeding to be held in English. Therefore, the Panel is of the opinion that Respondent appears to have sufficient command of the English language in order to understand the nature of the proceeding and the contentions of Complainant and to present its case before the Panel. For these reasons, and as Respondent has had the opportunity to file a Response in either Russian or English, the Panel is satisfied that Respondent would suffer no prejudice if the proceedings are carried out in English. On this basis, and on the grounds of Rules, paragraph 11(a), and Rules, paragraph 10(a), (b) and (c), the Panel decided that the language of the administrative proceeding be English. 4. Factual Background
Complainant DFDS A/S - " Det Forenede Dampskibs Selskab" (The United Steamship Company) – is a large shipping company and the oldest one in Denmark, founded in 1866. It is headquartered in Copenhagen and quoted on OMX The Nordic Exchange, Copenhagen. Complainant employs more than 4,400 people.
Currently, it is a leading North European liner shipping company with passenger activities being operated by Dfds Seaways. The main customer groups consist of holidaymakers travelling by car, Mini Cruise passengers, group travel and transport and conference passengers. Besides Denmark, DFDS is present in Norway, Sweden, Finland, France, Latvia, Lithuania, Ireland, United Kingdom of Great Britain and Northern Ireland, The Netherlands, Belgium, Germany, and Poland. Complainant uses the domain name in connection with the marketing of its DFDS SEAWAYS travel services.
The trademark DFDS SEAWAYS is registered as Community trademark with reg. No. 004278321 for services in International Classes 36, 39, and 43, with priority from February 8, 2005, and with a series of national seniorities recorded, one of them dating back to 1971.
The Domain Name was registered on January 8, 2011 5. Parties’ Contentions A. Complainant
According to Complainant, the Domain Name is identical or confusingly similar to trademarks in which Complainant has rights. The addition of the company form “inc” does not eliminate the confusing similarity between the Domain Name and Complainant's trademark, but merely creates the impression that the Domain Name is related to a company in the DFDS SEAWAYS group of companies.
Complainant further contends that Respondent has no rights or legitimate interests in the Domain Name. Respondent uses the Domain Name in connection with a website that contains false information about a non-existing company. (Annex 4 o the Complaint) Therefore, the Domain Name and the website connected to it have been created by Respondent with the sole purpose to mislead Internet users to think that this is an official website of a company affiliated to Complainant, and, allegedly, to induce them to provide certain personal information.
Complainant also alleges that the Domain Name was registered and is being used in bad faith.
Given that the associated website alludes to Complainant and provides false information about a non-existing DFDS company, Respondent has clearly been aware of Complainant and of its trademark rights, when she registered the Domain Name, and is intentionally using the Domain Name for commercial gain and with the purpose of capitalizing on the goodwill of Complainant and its trademark, attempting to attract Internet users for commercial purpose to her website by creating a likelihood of confusion with Complainant's mark. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Pursuant to Policy, paragraph 4(a), Complainant must prove each of the following to justify the transfer of the Domain Name:
(i) That the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) That the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) That the Respondent has registered and is using the Domain Name in bad faith.
By Rules, paragraph 5(b)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name[…]”
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to Respondent, in compliance with Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present her case.
In the event of a default, under Rules, paragraph (14)(b): “[…]the Panel shall draw such inferences therefrom as it considers appropriate.” As stated by the panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques,WIPO Case No. D2000-0004: “Here, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent.” As stated by the panel in Viacom International Inc. v. Ir Suryani,WIPO Case No. D2001-1443: “Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. […]In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.”
In this administrative proceeding, Respondent has chosen not to submit a Response. Her default leads the Panel to conclude that Respondent has no arguments or evidence to rebut the assertions of Complainant. The Panel has to take his decision on the basis of the statements and documents before it and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar
Complainant has provided evidence and has thus established its rights in the word trademark DFDS SEAWAYS, registered for the territory of the European Union.
It is a common practice under the Policy to disregard the gTLDs such as the “.com” section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). Therefore, the relevant part of the Domain Name is its “dfds-seaways-inc” section. The combination “dfds-seaways” is identical to the Complainant’s trademark, and the “inc” element is generic and would be regarded as an abbreviation of the term “incorporated”, which is term used to define a type of commercial legal entity, and is in this sense similar to widely used indications such as “ltd.” or “S.A.” Therefore, it is likely that the attention of an average Internet user would be mainly attracted by the “dfds-seaways” element of the Domain Name.
On these grounds, the Panel finds that the Domain Name is confusingly similar to a trademark in which Complainant has rights. B. Rights or Legitimate Interests
Complainant claims that Respondent has no rights or legitimate interests in the Domain Name, and provides certain arguments in this regard. Thus, Complainant establishes a prima facie case under Policy, paragraph 4(a)(ii).
It is well established that once a complainant makes out a prima facie case that the respondent has no rights or legitimate interests in a domain name, the burden shifts to the respondent to rebut the showing by providing evidence to the contrary.
In the present case, Respondent has chosen not to present to the Panel any allegations or documents in her defense despite the burden under the Rules, paragraph 5(b)(i) and 5(b)(ix) or the consequences that a panel may extract from the fact of a default (Rules, paragraph 14). If Respondent had any justification for registering or using the Domain Name, she could have provided it. In particular, Respondent has not contended that any of the circumstances described in Policy, paragraph 4(c) — or any other circumstance — is present in her favor.
The only information available about Respondent is the publicly available WhoIs information, provided by the Registrar. The WhoIs information contains no evidence of rights or legitimate interests of Respondent in the Domain Name, which, as found above, is confusingly similar to the trademark of Complainant. Respondent makes no claims for having rights or legitimate interests in respect of the Domain Name and provides no explanation whatsoever for its registration and use. As submitted by Complainant and not denied by Respondent, at the time of the filing of the Complaint the Domain Name was associated to a website which appeared to contain false information about a non-existing company appearing as affiliated to Complainant, and this has taken place without the consent of Complainant.
In the Panel’s view, such conduct could not be regarded as giving rise to rights and legitimate interests of Respondent in the Domain Name. Therefore, and in the lack of any evidence or allegations to the contrary, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name within the meaning of the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith
For the purposes of Policy, paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on the holder’s website or location.
In the present case, the Domain Name is confusingly similar to Complainant’s DFDS SEAWAYS trademark and clearly refers to Complainant. The website associated to the Domain Name contains false information about a non-existing company appearing as affiliated to Complainant, and contains no disclaimer of any affiliation to Complainant. The same appears from the submitted email message by Mr. Johnson to Complainant. This is sufficient for the Panel to decide that at the time of the registration of the Domain Name, Respondent was definitely aware of Complainant and of its goodwill. Internet users that reach the website of Respondent may well believe that this website is affiliated to Complainant and may be led to disclose their personal data to Respondent while attempting to communicate to Complainant.
Therefore, and in the lack of any contrary evidence or even allegation of any actual or contemplated good faith use of the Domain Name, the Panel is prepared to accept that Respondent has registered and used the Domain Name in bad faith by intentionally attempted to attract, for commercial gain, Internet users to the website at the Domain Name by creating a likelihood of confusion with Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of this website. 7. Decision
For 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.
Assen Alexiev
Sole Panelist
Dated: August 17, 2011
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