The Complainant is Wim Bosman Holding B.V. of Heerenberg, Netherlands, represented by Markenizer B.V., Netherlands.
The Respondent is Ipower, Inc. of Burlington, Massachusetts, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with D, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 7, 2014. On April 7, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same date, the Registrar 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 14, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was May 4, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 8, 2014.
The Center appointed Alan L. Limbury as the sole panelist in this matter on May 20, 2014. 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.
On May 2, 2014, the Complainant submitted a supplemental filing. In acknowledging receipt the same day, the Center noted that under the Rules, paragraphs 10 and 12, it is in the sole discretion of the Panel whether to consider and/or admit any supplementary filing. The Panel has not found it necessary to consider that filing. 4. Factual Background
The Complainant, a logistics company providing warehousing, transport and distribution services worldwide, was founded in 1963 in the Netherlands by an engineer named Wim Bosman. The Complainant is the proprietor of numerous registered trademarks for the words WIM BOSMAN, either alone or in combination with a design, including European (O.H.I.M.) word marks 005358189, registered on November 15, 2007 in classes 39 and 42 and 010658623, registered on July 2, 2012 in classes 12, 35, 36 and 39.
The Domain Name was registered on July 2, 2013. Prior to the notice of this dispute, it resolved to a website with links relating to financial and human relations (“HR”) topics in English and Dutch. The Domain Name was also linked to an email address used to offer people employment with the Complainant, for example as shipping clerks to deliver packages. This came to the Complainant’s attention when recipients of such emails contacted the Complainant to check whether the offers they were given were genuine. 5. Parties’ Contentions A. Complainant
The Complainant says the Domain Name is almost identical but in any case confusingly similar to its WIM BOSMAN trademark and that the Respondent has no rights or legitimate interests in the Domain Name, which was registered and is being used in bad faith.
As to legitimacy, by pretending to be a member of the HR department of the Complainant, the Respondent is misleading people and damaging the Complainant’s reputation. The Respondent is not commonly known by the Domain Name, has no trademark rights in WIM BOSMAN, has no connection with the Bosman family and is clearly making no legitimate noncommercial or fair use of the Domain Name. None of the “Oki Data” criteria apply: Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903.
As to bad faith, the Respondent is misleading Internet users into thinking that the Respondent is part of the HR department of the Complainant and offering job opportunities for obscure and possibly illegal projects, thus taking advantage of the Complainant’s trademark and reputation in attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website or of a product or service on the website.
The Complainant seeks transfer to it of the Domain Name or, if not possible, cancellation. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under the Policy, paragraph 4(a), the Complainant must prove each of three elements of its case in order to obtain the requested relief:
(i) the Respondent’s Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Respondent registered and is using the Domain Name in bad faith.
A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc.,WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109; SSL International plc v. Mark Freeman,WIPO Case No. D2000-1080 and Alta Vista Company v. Grandtotal Finances Limited et al.,WIPO Case No. D2000-0848. A. Identical or Confusingly Similar
The test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone: Wal-Mart Stores, Inc. v. Traffic Yoon,WIPO Case No. D2006-0812. The generic Top-Level Domain “.com” is to be disregarded: Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429.
The Panel finds the Domain Name to be confusingly similar to the Complainant’s WIM BOSMAN trademark.
The prefix “hr-”, far from distinguishing the Domain Name from that mark, serves to reinforce its distinctiveness by conveying the idea that the Domain Name emanates from the HR department of the Complainant.
The Complainant has established this element of its case. B. Rights or Legitimate Interests
The Panel finds that the WIM BOSMAN mark is distinctive. The Complainant’s assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interest in the Domain Name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited. The Respondent has made no attempt to do so.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name.
The Complainant has established this element of its case. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy. The Complainant relies on paragraph 4(b) (iv):
“by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 respondent’s website or location or of a product or service on its website or location”.
It is clear from the queries received by the Complainant from recipients of the Respondent’s communications (Annex 2 to the Complaint) that Internet users have been confused by the Respondent’s use of the Domain Name, coupled with job offers falsely represented to be from the Complainant. If the Respondent intended to benefit financially from this confusion, the Panel finds the circumstances set out in the Policy, paragraph 4(b)(iv) to be made out and that the Domain Name was registered and is being used in bad faith. In any event, as the circumstances in paragraph 4(b) of the Policy are not exclusive, the Panel finds that regardless of whether the R intended to benefit financially, the Domain Name was registered and is being used in bad faith.
The Complainant has established this element of its case. 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.
Alan L. Limbury
Sole Panelist
Date: May 21, 2014
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