The Complainant is DFDS A/S, Copenhagen of Denmark, represented by Zacco Denmark A/S, Denmark.
The Respondent is Milena YUrevna Valenskaya of Kiev, Ukraine. 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 April 19, 2012. On April 20, 2012, 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 April 22, 2012, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on April 26, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was May 16, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 21, 2012.
The Center appointed Andrea Jaeger-Lenz as the sole panelist in this matter on June 1, 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
The Complainant, DFDS A/S “Det Forenede Dampskibs-Selskab” (The United Steamship Company), is the oldest large shipping company in Denmark, founded in 1866. It is headquartered in Copenhagen and quoted on the OMX The Nordic Exchange Copenhagen. The Complainant employs more than 4,400 people. It is a leading North European shipping company with passenger activities being operated by DFDS SEAWAYS. The main customer groups consist of holiday makers travelling by car, mini group passengers, group travel and transport and conference passengers. Besides Denmark, the Complainant is present in the following European countries: Norway, Sweden, Finland, France, Latvia, Lithuania, Ireland, United Kingdom of Great Britain and Northern Ireland, The Netherlands, Belgium, Germany and Poland. It uses, amongst others, the domain name in connection with marketing its DFDS SEAWAYS Travel Services.
The Complainant is registered owner of Community trade mark No. 4278321 “DFDS SEAWAYS” (word) with a priority dating back to February 8, 2005 and a number of national seniorities, dating back to earlier dates, the oldest dating back to 1971, recorded for services in international classes 36, 39 and 43. The disputed domain name was registered on November 25, 2011. It resolves into a website that looks like an official website of the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to trade marks in which the Complainant has rights. The addition of the company form “Inc.” does not eliminate the confusing similarity between the disputed domain name and the Complainant’s trade mark but merely enhances the impression that the disputed domain name is related to a company in the DFDS SEAWAYS group of companies.
According to the Complainant, the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant points to the fact that the Respondent uses the disputed domain name in connection with a website that contains false information about a non-existing company DFDS Seaways, Inc. and to that extent points to Annexes 4 to 7 of the Complaint. Also, the Complainant contends that the Respondent leads Internet users into thinking that the website is an official of the Complainant’s company and uses it as a “job offering hoax”, attempting to trick job seekers into applying for a job and in that connection provide their credit card number or deposit money on a special bank account in order to – allegedly – cover various expenses in connection with a “job interview”. The fact that the Respondent uses the Complainant’s trade mark and provides false information on the website into which the disputed domain name resolves itself proves that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant also states the disputed domain name was registered and is being used in bad faith. Considering the information provided by the Respondent on the website into which the disputed domain name resolves shows that the Respondent has clearly been aware of the Complainant and the Complainant’s trade mark rights and company name DFDS SEAWAYS, when registering the disputed domain name. The Complainant continues that it is obvious that the Respondent is using the domain name for commercial gain and with the purpose of capitalization of the Complainant’s trade mark DFDS SEAWAYS as it clearly alludes to the Complainant. It is also being used in bad faith because the Respondent intentionally attempts for commercial gain to attract internet users to its website by creating a likelihood of confusion with the Complainant’s mark. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following requirements to justify the transfer of the disputed domain name:
(i) That the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the Respondent has registered and is using the disputed domain name in bad faith.
By the Rules, paragraph 5(b)(i), it is expected of the respondent to “[r]espond specifically to the statements and allegations contained in the Complaint and include any and all basis 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 means to achieve actual notice of the Complaint to the Respondent in compliance with the Rules, paragraph 2(a), and the Respondent was given an opportunity to present its case.
In the event of a default, under the Rules, paragraph 14(b) “[…] the panel shall draw such inferences therefrom as it considers appropriate.” As stated by numerous panels (e.g., Viacom International Inc. v. Ir Suryani,WIPO Case No. D2001-1443), if the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, the 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 factual and legal conclusions as proven by such evidence.”
In the present administrative proceeding, the Respondent has chosen not to submit a response. Its default leads the Panel to conclude that the Respondent has no arguments or evidence to rebut the contentions of the Complainant. The Panel takes its 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 it deems applicable. A. Identical or Confusingly Similar
The Complainant has provided evidence for and has thus established that it has rights in the word mark DFDS SEAWAYS, registered for the territory of the European Union. It is common practice under the Policy to disregard the generic top level domain of a disputed domain name such as “.com”, “.net” or others for the purpose of establishing identity or confusing similarity under paragraph 4(a)(i) of the Policy. Therefore, the relevant part for the comparison is “dfds-seaways-inc”. The part “dfds-seaways” is identical to the Complainant’s trade mark. The element “inc” is generic, commonly known as indicating the term “Incorporated” in order to define a certain type of commercial legal entity. Therefore, the disputed domain name is dominated by the part “dfds-seaways”.
Therefore, the Panel finds that the disputed domain name is confusingly similar to a trade mark in which the Complainant has rights. B. Rights or Legitimate Interests
The Complainant has claimed that the Respondent has no rights or legitimate interests in the disputed domain name, and provides a number of arguments to that extent. Thus, the Complainant has established a prima facie case under the Policy, paragraph 4(a)(ii).
It is a well established principle that once a complainant makes a prima facie case that a respondent has no rights or legitimate interests in given domain name, the burden of evidence shifts on the respondent to rebut this showing by providing evidence to the contrary.
In the present case, the Respondent has chosen not to present any arguments providing for the contrary. In particular, the Respondent has not contended that any of the circumstances described in the Policy paragraph 4(c), or any other circumstances are present in its favour.
Besides that, there are no facts provided in the publically available WhoIs information leading to assume that any rights or legitimate interests of the Respondent could be present in this case. As submitted by the Complainant and not denied by the Respondent, at the time of filing of the Complaint the disputed domain name was associated to a website which appeared to contain false information about a non-existing company appearing as affiliated to the Complainant, which has taken place without the consent of the Complainant.
Therefore, and in the lack of any evidence or allegations to the contrary, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name within the meaning of the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith
For the purposes of the 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 domain name holder has registered or has acquired the domain name primarily for the purposes of selling, renting, or otherwise transferring the domain name registration to the complainant, who is the owner of the trade mark or service mark, or to a competitor of the complainant, for valuable consideration in excess of the domain name holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the domain name holder has registered the domain name in order to prevent the owner of the trade mark 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 domain name 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 domain name holder has intentionally attempted to attract, for commercial gain, internet users to the domain name 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 his website or location or of a product or service on the domain name holder’s website or location.
In the present case, the disputed domain name is nearly identical to the Complainant’s trade mark and company name and clearly refers to the Complainant. The website into which the disputed domain name resolves contains false information about a non-existing company appearing as affiliated to or identical with the Complainant, and it contains no disclaimer of any affiliation to the Complainant. The fact that the Respondent registered the disputed domain name in bad faith, i.e. being clearly aware of the Complainant’s trade mark, is evidenced by the fact the Complainant has already engaged into such a conduct, as is evidenced by the Administrative Panel Decision (Annex 7 of the Complaint) in the parallel procedure DFDS A/S v. Milena Valenskaya,WIPO Case No. D2011-0941, where the parties to the procedure were exactly identical, and the domain name at issue was . Also, the website that the Respondent has created in order to link the disputed domain name to, is designed in such a professional way that any Internet user led to this domain name would naturally assume that this is indeed the official website of the Complainant. The Complainant has also provided evidence that the Respondent is trying to gain commercially from this misleading website and that, by creating a “job offering hoax”, the Respondent attempts to trick job seekers into applying for a job and in that connection provide their credit card number or deposit money on a special bank account in order to cover various expenses, allegedly. This pattern of conduct is clearly proving that the disputed domain name is also being used in bad faith by attempting 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 the website or location or of a product or service on the Respondent’s website or location, see Policy, paragraph 4(b)(iv) mentioned above.
Therefore, and in the lack of any allegation or evidence to the contrary, the Panel accepts that the Respondent has registered and is using the disputed domain name in bad faith. 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 the Complainant.
Andrea Jaeger-Lenz
Sole Panelist
Dated: June 12, 2012
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