The Complainant is Consumentenbond of The Hague, the Netherlands, represented by SOLV Advocaten, the Netherlands.
The Respondent is Private registrant, A happy DreamHost customer / Paul Snow or Philippe Aime of Brea, California, the United States of America and La Conversion, Switzerland, respectively. 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 June 13, 2013. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 4, 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. On the same date, the Center sent an email communication to the Complainant providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 8, 2013.
Although the Complainant elected to replace the name of the initial Respondent (an apparent privacy or proxy service) in the amended Complaint, the Panel has elected to retain both entities as “the Respondent” in this matter, both due to the definitions found in the Rules for Uniform Domain Name Dispute Resolution Policy (“UDRP Rules”) and the fact that the publicly-available WhoIs records as of the date of this Decision continue to reflect the name of the initially-named party.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 July 9, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was July 29, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 30, 2013.
The Center appointed Torsten Bettinger as the sole panelist in this matter on August 9, 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
The Complainant was founded in 1953 as the agency responsible for defending and protecting consumer rights in the Netherlands. Since April 1953 it has published a monthly magazine, offering independent tests and reviews of consumer goods and services, under the title “Consumentengids.” The Complainant secured trademark registration for the CONSUMENTENGIDS mark in November 1984. As of March 2013, when the disputed domain name was registered, the Complainant’s “Consumentengids” periodical had roughly 475,000 subscribers.
The disputed domain name was registered on March 21, 2013, and was briefly used in connection with a very low-cost auction website apparently managed by an entity named “VIPVeiling.” The website promised opportunities to bid on retail commodities and thus “save up to 95% of the advertised price,” and alleged that it had been vetted by an organization named “Actueel-Consumentengids.”
According to the uncontested information submitted in the Complaint, the website at the disputed domain name ceased displaying the above content on or before May 31, 2013, and indeed as of the date of this Decision the disputed domain name does not connect to any active content. 5. Parties’ Contentions A. Complainant
The Complainant alleges that all three required elements under the Policy have been satisfied in this matter.
With regard to the first element, the Complainant notes that the disputed domain name includes the entirety of the Complainant’s registered CONSUMENTENGIDS mark, with the mere addition of the generic word “online” and the current year, “2013,” which do not adequately distinguish the disputed domain name from the Complainant’s mark.
Concerning the second element, the Complainant asserts that it has never authorized the Respondent to utilize its mark in any fashion, that the Respondent has no connection to the Complainant, and that nothing in the record indicates the Respondent has been commonly known by a name corresponding to the disputed domain name. Moreover, since the Respondent appears to have used the disputed domain name in connection with a commercial enterprise, by trading on the air of authority lent to the site by the inclusion of the name of the Complainant’s official publication and the allegation that the website is managed by “Actueel-Consumentengids,” it is clear that it is not making any noncommercial or fair use of the disputed domain name.
With regard to the third element, the Complainant alleges that the domain name has been both registered and used in bad faith. The Complainant notes the longstanding registration of its CONSUMENTENGIDS mark, and alleges that the Respondent likely had its popular magazine in mind when selecting the disputed domain name. Furthermore, the Complainant notes the similarities between this case and that of Consumentenbond v. Philippe AIME / Private registrant, A happy DreamHost customer,WIPO Case No. D2013-0514, and states that passive holding of a domain name may, in appropriate circumstances, be found to constitute evidence of registration and use in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has clearly established its rights in the CONSUMENTENGIDS mark by virtue of its nearly thirty-year old registration for the term, which it uses in connection with its well-circulated periodical.
The disputed domain name contains the entirety of the Complainant’s CONSUMENTENGIDS trademark, in addition to the generic words “online” and “2013.” The addition of non-distinctive generic or dictionary terms to a complainant’s trademark cannot serve to distinguish the included mark from the disputed domain name. See F. Hoffmann-La Roche AG v. Private Whois ,WIPO Case No. D2012-0695; Nilfisk-Advance A/S v. Moniker Privacy Services / Janice Liburd,WIPO Case No. D2011-0693; and Lancel International SA, Lancel Sogedi v. Storynike,WIPO Case No. D2011-0199.
Moreover, it is well established that a generic Top-Level Domain (“gTLD”) suffix, such as “.com”, is generally held to be irrelevant for the purposes of determining identity or confusing similarity under the Policy. See Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s CONSUMENTENGIDS trademark, and that the Complainant has established the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain name. It is, however, the consensus view among WIPO UDRP panelists that if a complainant makes a prima facie case that a respondent has no rights or legitimate interests, and the respondent fails to show one of the three circumstances under paragraph 4(c) of the Policy, then the respondent may lack a legitimate interest in the domain name. See Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110.
In this case, the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The Complainant confirms that it has not licensed or authorized the Respondent to use its CONSUMENTENGIDS mark in any fashion and that there is no connection between the parties. There is no evidence on the present record, or in the publicly-available WhoIs records, to indicate that the Respondent is commonly known by the disputed domain name or a name corresponding to the disputed domain name. Additionally, it would appear that the Respondent has previously used the disputed domain name in connection with an online auction website, in order to earn commissions or other revenue. The Respondent has identified its activities on the website as those of “Actueel-Consumentengids,” a name which mimics the official title of the Complainant’s well-circulated consumer interest magazine. Thus, the Panel finds it likely that the Respondent has used the domain name, and its associated website, to secure commercial gain by trading on the recognition and goodwill associated with the Complainant’s mark. Such use of the disputed domain name neither constitutes a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
Under these circumstances, the Panel takes the view that the Respondent has no rights or legitimate interests in the disputed domain name and that the requirement of paragraph 4(a)(ii) is also satisfied. C. Registered and Used in Bad Faith
The Complainant has provided evidence of its CONSUMENTENGIDS trademark, which has been registered since 1984 for use in connection with its consumer protection and interest magazine. The disputed domain name was registered on March 21, 2013, nearly thirty years after the Complainant’s mark was registered, and sixty years after the Complainant’s magazine entered circulation under the same name. The Respondent has formerly used the disputed domain name to offer auction services, trading on the authority of the Complainant’s name to lend an air of legitimacy to its actions. Thus, it is clear to the Panel that the Respondent was fully aware of the Complainant and its mark when it selected the disputed domain name.
By registering the disputed domain name and using it to garner revenue via an online auction website, it is clear that the Respondent was attempting to divert Internet traffic intended for the Complainant’s website to its own for commercial gain by creating a likelihood of confusion as to the source or sponsorship of the Respondent’s website. Such use constitutes bad faith under paragraph 4(b)(iv) of the Policy.
The Respondent’s subsequent passive holding of the disputed domain name is further evidence of the Respondent’s bad faith, under the principles established by Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The Complainant’s mark is well-established and appears to be widely known by Dutch consumers, there has been no evidence of any good-faith or bona fide use of the disputed domain name by the Respondent, the Respondent has attempted to conceal his identity via the use of a privacy (or proxy) service, and given the longstanding use of the CONSUMENTENGIDS mark by the Complainant, it is impossible to conceive of any use to which the Respondent could put the disputed domain name that would not infringe the Complainant’s rights.
The Panel therefore concludes that the requirement of paragraph 4(a)(iii) of the Policy has also been met. 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 the Complainant.
Torsten Bettinger
Sole Panelist
Date: August 26, 2013
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