The Complainant is Koninklijke KPN N.V. of The Hague, The Netherlands, represented internally.
The Respondent is Marijn Vlug of Egmond aan Zee, The Netherlands. 2. The Domain Name and Registrar
The disputed domain name is registered with Go Australia Domains, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 27, 2014. On June 27, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 4, 2014, 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 July 4, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 24, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 25, 2014.
The Center appointed Alfred Meijboom as the sole panelist in this matter on July 28, 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. 4. Factual Background
The Complainant is the incumbent telecommunication service provider in the Netherlands, and owns registrations for the word mark KPN (the “Trademark”), including a Benelux trademark with registration number 0529431 of March 2, 1993, and a Community trademark with trademark number 0310099 of August 26, 2006 for goods and services in different classes, inter alia, relating to telecommunications.
The disputed domain name was registered by the Respondent on April 9, 2014. 5. Parties’ Contentions A. Complainant
The Complainant had been providing telecommunication services to the Dutch public under the brand Koninklijke PTT Netherlands (abbreviated “KPN”) between 1913 and 1989, and currently as a privatized company still providing telecommunication services to the Dutch public, amongst others under the Trademark, which is a well-established and famous household name in the Netherlands.
The disputed domain name consists of two distinct elements, being the second level domain name “kpn” and the generic Top-Level Domain (gTLD) “.international”. The word “international” in the context of business implies global or at least international operations. The Complainant operates internationally under the name “KPN International”.
The Complainant notified the Respondent of the infringement of its Trademark by the disputed domain name and summoned the Respondent to bring such infringement to an end. In response the Respondent contacted the Complainant and acknowledged that he was aware of the Trademark, and indicated that he would be prepared to transfer the disputed domain name to the Complainant for EUR 900. The Respondent added that this offer was lower in amount than the cost of filing a UDRP Complaint, clearly and blatantly illustrating his bad faith in registration and his abuse of the UDRP system. The Complainant made a counteroffer of EUR 50, which the Respondent rejected, threatening that he would generate more income by selling the disputed domain name at auction.
The disputed domain name consists solely of the Trademark so that the disputed domain name is identical to the Trademark.
The Respondent was not authorized by the Complainant to register and/or use the disputed domain name. Also, before the dispute, there is no evidence of the Respondent’s use of, or demonstrable preparations to use the disputed domain name or a corresponding name in connection with a bona fide offering of goods or services. Additionally, the Respondent is not commonly known (either as a person, business, or organization) by the disputed domain name. Finally, the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. The Respondent openly admits to knowing of the Trademark and that the registration of the disputed domain name is intended for re-sale, at an inflated price, to the Complainant.
The Complainant invested significantly in the Trademark, which became well known in the Netherlands. It is therefore beyond reasonable question that the Respondent is well aware of the Trademark. The Respondent has even acknowledged his awareness of the Trademark. Nevertheless the Respondent has registered the disputed domain name because of the potential value of the Trademark to the Complainant, and tries to monetize the disputed domain name based on the value of the procedural cost for UDRP proceedings for the Complainant. By registering the disputed domain name, the Respondent intentionally attempted to attract for commercial gain by means of sale of the disputed domain name to the Complainant for a hugely inflated price, which is ground for determination of registration and use in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Respondent did not reply to the Complainant’s contentions. However, as set out in paragraph 4.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, (“WIPO Overview 2.0”), the consensus view of UDRP panelists is that a respondent’s default does not automatically result in a decision in favor of the complainant. The complainant must still establish each of the three elements required by paragraph 4(a) of the Policy. Although the Panel may draw appropriate inferences from a respondent’s default, paragraph 4 of the Policy requires the complainant to support its assertions with actual evidence in order to succeed in these proceedings. Paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, the Panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules. The Panel finds that in this case there are no such exceptional circumstances.
Under the Policy, the Complainant must prove that:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
It is well established that gTLDs may typically be disregarded in the assessment under paragraph 4(a)(i) of the Policy (e.g. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003), and, in the present case at least, this is not different for the new gTLD “.international”.
The Panel finds the disputed domain name to be identical to the Trademark, so that the first element of paragraph 4(a) of the Policy is met. B. Rights or Legitimate Interests
The Complainant must make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which the Respondent may rebut (e.g. Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Complainant has shown that it has not authorized the Respondent to use the Trademark, and that the Respondent is not commonly known by the disputed domain name. Further, the Complainant has shown that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name in light of the fact that the website at the disputed domain name merely indicates that the “domain name has been reserved” and in light of the Complainant’s evidence that the Respondent’s intention was to sell the disputed domain name to the Complainant or a third party for significantly more than his out-of-pocket costs directly related to the disputed domain name.
The Panel is therefore satisfied that the Complainant has made a prima facie case, which the Respondent has not rebutted. As a result, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and the second element of paragraph 4(a) of the Policy is also met. C. Registered and Used in Bad Faith
The Panel is of the opinion that this is a clear case of cybersquatting. The Trademark is well known in the Netherlands, where the Respondent apparently lives and operates his business, and the Respondent was doubtlessly aware of the Trademark when he registered the disputed domain name. The Respondent did, in fact, acknowledge his awareness of the Trademark in his e-mail of June 25, 2014. In this e-mail, which he explicitly sent on behalf of his Internet company Egogo, the Respondent also wrote that he was only prepared to transfer the disputed domain name to the Complainant upon payment of EUR 900 – which is most likely in excess of his out-of-pocket costs directly related to the disputed domain name (cf. paragraph 4(a) of the Policy) – and that, in the Panel’s translation of the Respondent’s e-mail, “the costs for UDRP proceedings, which are entirely for the complainant’s own expense, are higher than our proposal”. In view of his e-mail, and in absence of a response, the Panel finds that the Respondent acted in bad faith when he registered and used the disputed domain name.
Consequently, the Panel is also satisfied that third and last element of paragraph 4(a) of the Policy is 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.
Alfred Meijboom
Sole Panelist
Date: August 8, 2014
Full & Egal Universal Law Academy