Complainant is Koninklijke KPN NV of The Hague, Netherlands, internally represented.
Respondent is Frank Reyneke of Sneek, Netherlands. 2. The Domain Name and Registrar
The disputed domain name (hereafter: the “Domain Name”) is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 12, 2012. On April 12, 2012, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On April 12, 2012, eNom. 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 17, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was May 7, 2012. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 8, 2012.
The Center appointed Dinant T.L. Oosterbaan as the sole panelist in this matter on May 11, 2012. 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
According to the evidence submitted by Complainant, Complainant Koninklijke KPN N.V. is a telecommunications services provider in the Netherlands. Between 1913 and 1989 it was the incumbent telecommunications operator and currently provides telecommunications services in the Netherlands under the brand name KPN. Complainant holds multiple trademark registrations for KPN, including a Benelux (word)mark registration under registration number BX 0529431 since 1993 and a Community (word)mark filed on August 26, 2006. The trademark registrations have been issued prior to the registration of the Domain Name. The Panel takes notice of Complainant’s statement that it operates 108 KPN stores and 15 KPN business centers in the Netherlands.
The Domain Name was registered on October 4, 2010. 5. Parties’ Contentions A. Complainant
Complainant submits that the Domain Name is confusingly similar to the KPN trademark as it contains the KPN trademark in its entirety. In the Dutch language the word “glasvezel” means “fibre optic”. According to Complainant, Respondent has no rights or legitimate interests in respect of the Domain Name in view of its trademark. Internet users are redirected to a website which is used for finding Internet service providers available at the residence of the internet user. The services offered by using the website are only offered by the competitors of Complainant. Respondent uses the Domain Name without permission from Complainant for commercial gain by misleading consumers and with the purpose to benefit from the reputation of the trademark of Complainant. Complainant submits that Respondent has registered and is using the Domain Name in bad faith as Respondent as a person resident in the Netherlands no doubt had knowledge of the well-known trademark of Complainant and is intentionally misleading consumers. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
Paragraph 4(a) of the Policy requires that Complainant proves each of the following three elements to obtain an order that the Domain Name should be transferred:
(i) the Domain Name registered by Respondent 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.
The Panel is satisfied that the registrant of record for the Domain Name is Respondent and will therefore proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied by Complainant in this proceeding. A. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy, Complainant must establish rights in a trademark and secondly that the Domain Name is identical or confusingly similar to a trademark in which Complainant has rights.
Complainant has established that it is the owner of various trademark registrations for KPN. The Panel notes that Complainant’s registrations predate the creation date of the Domain Name.
The Domain Name incorporates the entirety of the KPN trademark as its distinctive element. Many UDRP decisions have found that a disputed domain name is confusingly similar to a complainant’s trademark where the disputed domain name incorporates the complainant’s trademark in its entirety. The addition of the common, descriptive or non-distinctive element “glasvezel” (translated as “fibre optic” in English) in a website of a Respondent located in the Netherlands and in website using the Dutch language is insufficient to avoid a finding of confusing similarity. Moreover, the generic term “glasvezel” adds to the potential confusion as Complainant sells telecommunications services using such technology.
The Panel finds that Complainant has proven that the Domain Name is confusingly similar to Complainant’s trademark. B. Rights or Legitimate Interests
In the opinion of the Panel, Complainant has made a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name. This is particularly true as Respondent is not making a legitimate noncommercial or fair use of the Domain Name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark of Complainant. Based on the evidence provided by Complainant, Respondent redirects Internet users to a pay-per-click website which is used for finding Internet service providers available at the residence of the Internet user. However, the services offered are only those offered by the competitors of Complainant. Respondent makes use of the value of the KPN trademark and the likelihood of confusion with the trademark of Complainant, which cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name. Respondent is not commonly known by the Domain Name nor has it acquired trademark rights.
Under these circumstances the Panel finds that Respondent has no rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
The Panel finds that the Domain Name has been registered and is being used in bad faith. The trademark and services of Complainant have been existing for a very long time. The KPN trademark is famous in the Netherlands. Respondent, who is a resident of the Netherlands, knew or should have known that the Domain Name included Complainant’s KPN trademark.
The Panel finds that the above elements mean that Respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trademark of Complainant as to the source, sponsorship, affiliation, or endorsement of its website or location or of a service on its website or location, as per paragraph 4(b)(iv) of the Policy. 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.
Dinant T.L. Oosterbaan
Sole Panelist
Dated: May 21, 2012
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