Complainant is Consumentenbond, The Hague, Netherlands, represented by SOLV Advocaten, Netherlands.
Respondent is Philippe AIME, La Conversion, Switzerland / Private registrant, A happy DreamHost customer, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with New Dream Network, LLC dba DreamH (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 14, 2013. On March 14, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 17, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on March 21, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on March 22, 2013.
The Center verified that the amended 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 March 25, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was April 14, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 19, 2013.
The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on May 3, 2013. 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 is a Dutch association that represents and defends the interests of Dutch consumers. Complainant publishes a consumer review magazine under the title “Consumentengids” and shows to be the holder of the following registered trademark:
CONSUMENTENGIDS (word), registered as a Benelux trademark under number 0403439, on May 1, 1985, applied for on November 5, 1984 for classes 9 and 16, an duly renewed;
The disputed domain name was created on February 6, 2012 and is registered by Respondent. The disputed domain name is linked to an online auction website on which it is mentioned that “Consumentengids recently tested” and that “the result was surprising”. 5. Parties’ Contentions A. Complainant
Complainant considers the disputed domain name to be confusingly similar to the trademark mark in which it claims to have rights. Complainant further claims that Respondent has no rights or legitimate interests in respect of the disputed domain name. According to Complainant, Respondent has not used the domain name in connection with a bona fide offering of services or a legitimate noncommercial use, as Respondent would be making unauthorized use of Complainant’s trademark in order to attract Internet users for its auction services. Also, Respondent has not been commonly known by the domain name, according to Complainant. Finally, Complainant considers that the disputed domain name was registered and is being used in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
The onus is on the Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of previous UDRP panels, that Complainant must show that all three elements set out in paragraph 4(a) of the Policy have been established before any order can be made to transfer a domain name. As the proceedings are administrative, the standard of proof is the balance of probabilities.
Thus for Complainant to succeed it must prove, within the meaning of paragraph 4(a) of the Policy and on the balance of probabilities that:
i) The disputed 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 disputed domain name; and
iii) The disputed domain name has been registered and is being used in bad faith.
The Panel will deal with each of these requirements in turn. A. Identical or Confusingly Similar
To prove this element Complainant must first establish that there is a trademark or service mark in which it has rights. Complainant has clearly established that there is a trademark in which the Complainant has rights. The mark has been registered and used, including in countries that Respondent seems to target with the website that is linked to the disputed domain name (see the language used on the website).
The Panel considers the disputed domain name to be composed of a name identical to the CONSUMENTENGIDS trademark and the non-distinctive generic terms “actueel” (which means “current” or “topical” in Dutch). The Panel is of the opinion that the mere addition of non-distinctive text to a complainant’s trademark constitutes confusing similarity, as set out in paragraph 4(a)(i) of the Policy (See Lime Wire LLC v. David Da Silva/C,WIPO Case No. D2007-1168, where the domain name was held to be confusingly similar to the LIME WIRE trademark, especially with addition of the word “download” because users typically download complainant’s software; International Business Machines Corporation v. Scott banner,WIPO Case No. D2008-0965, where the domain name was held to be confusingly similar to the IBM trademark because many Internet users would assume that the Domain Name identifies a website from which they can download software supplied by the Complainant; Nintendo v. Beijin,WIPO Case No. D2001-1070, where the addition of the words “mail’, “post”, “fan” and “top50” to the mark “POKÉMON” in the disputed domain names was held to be of minimal impact on what the visitor of the website focuses on, namely the mark “POKÉMON”; Nintendo v. Gray West International,WIPO Case No. D2000-1219, where it was held that the addition of the word “games” in the domain name does nothing to reduce its confusing similarity with Nintendo’s POKÉMON marks); Dr. Ing. h.c. F. Porsche AG v. Kentech, Inc. a.k.a. Helios Lab a.k.a. Orion Web a.k.a. Titan Net a.k.a. Panda Ventures a.k.a. Spiral Matrix and Domain Purchase, NOLDC, Inc.,WIPO Case No. D2005-0890, where the domain name was held to be confusingly similar to the trademark PORSCHE).
Accordingly, the Complainant has made out the first of the three elements that it must establish. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, Complainant has the burden of establishing that Respondent has no rights or legitimate interests in respect of the domain name.
It is established case law that it is sufficient for Complainant to make a prima facie showing that Respondent has no rights or legitimate interests in the domain name in order to place the burden of production on Respondent. (See Champion Innovations, Ltd. v. Udo Dussling (45FHH),WIPO Case No. D2005-1094; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110).
The Panel notes that Respondent has not been commonly known by the disputed domain name and that Respondent has not acquired trademark or service mark rights. Respondent’s use and registration of the disputed domain name was not authorized by Complainant. There are no indications that a connection between Complainant and Respondent existed.
Moreover, the Panel is of the opinion that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. In fact, Respondent is using the disputed domain name to offer online auction services, using Complainant’s trademark and reputation to promote these services to Internet users. Respondent creates an impression that Complainant is authorized to use Complainant’s trademark for such purpose. According to the Panel, such use of the disputed domain name is detrimental to Complainant and cannot be considered to constitute a bona fide commercial or fair use. C. Registered and Used in Bad Faith
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and that it is being used in bad faith (See e.g. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd,WIPO Case No. D2006-1052).
Paragraph 4(b) of the Policy provides a non-exclusive list of factors, any one of which may demonstrate bad faith. Among these factors demonstrating bad faith registration and use is the use of a domain name to intentionally attempted to attract, for commercial gain, Internet users to a web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web site or location or of a product or service on the web site or location.
In the present case, it is inconceivable that Respondent was unaware of Complainant and its trademark rights when it registered the disputed domain name. This is evidenced by the incorporation of Complainant’s trademark in its entirety in the disputed domain name and by the reference to “Consumentengids and consumentenbond in actie” on the website linked to the domain name. Hence, it is apparent that Respondent had Complainant in mind when registering the disputed domain name.
Furthermore, without authorization Respondent is using Complainant’s trademark and reputation with consumers for the promotion of online betting services. Hence, Respondent tries to intentionally attract Internet users to visit its website for commercial gain, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the web site or location and of the products offered for sale on the web site.
Therefore, the Panel finds that, on the balance of probabilities, it is sufficiently shown that the disputed domain name was registered and is being used 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 disputed domain name, be transferred to Complainant.
Flip Jan Claude Petillion
Sole Panelist
Date: May 24, 2013
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