The Complainant is Koninklijke KPN N.V. of the Hague, the Netherlands, internally represented.
The Respondent is Jose Castrellon / Cyber Cast Intl of Panama. 2. The Domain Name and Registrar
The disputed domain name is registered with 1API GmbH (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 30, 2015. On January 30, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 3, 2015, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on February 20, 2015. On February 23, 2015, the Center sent an email to the Complainant requesting confirmation regarding the mutual jurisdiction. On February 23, 2015, the Center received the Complainant's confirmation.
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 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 February 24, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was March 16, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 17, 2015.
The Center appointed J. Nelson Landry as the sole panelist in this matter on March 26, 2015. 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 and its predecessor Koninklijke PTT Netherlands ("KPN") have been active in the field of telecommunication services since 1913 and also involved in related services, including television, mobile communications, mobile and fixed line telephones and accessories. The Complainant is the owner of the trademark KPN registered in 1993 at the Benelux Office for Intellectual Property and also the same in 2008 as a Community Trademark in association with numerous classes, including class 9 which comprises mobile telephones. It is also the owner of the registration in 2006 of the figurative trademark KPN in association with a logo, again in both the Netherlands and the Community territory (herein the "KPN Trademarks").
The Respondent registered the disputed domain name (herein "the disputed domain name") on December 7, 2014. The Respondent operated a website at the address of the disputed domain name where there were offered telecommunication products, in particular mobile telephones, to consumers under the KPN logo Trademark (herein the "Respondent's website"). The disputed domain name and related website were rendered inoperative by the Registrar pursuant to a fraud complaint made to the latter by the Complainant. 5. Parties' Contentions A. Complainant
The Complainant represents that the disputed domain name is confusingly similar with its Trademark since it incorporates the Complainant's KPN Trademark and the term "mobiel" which is a descriptive term for mobile in Dutch.
The Complainant has not provided any authorization to the Respondent to use its KPN Trademarks or to register and use the disputed domain name. The Complainant further asserts that the Respondent is not commonly known under the name "mobiel-kpn". Furthermore, according to the Complainant, the Respondent has used the disputed domain name to engage in fraudulent actions and take unfair advantage of the distinctive character or reputation of the KPN Trademarks and engaged in a commercial use of the disputed domain name to mislead Internet visitors.
The Complainant further represents that upon observing the Respondent's website, there was the offer "for sale" of mobile telephone apparatus under the presence of the KPN logo Trademark on the front page of the website, thereby pretending to be the Complainant or associated therewith. The Complainant contends the Respondent must have been aware of the existence of the Complainant's KPN Trademarks and contends that the disputed domain name was registered in bad faith.
The Complainant contends that the Respondent is intentionally attempting to attract for commercial gain Internet visitors to its website by creating a likelihood of confusion with the Complainant's KPN Trademarks as to the source, sponsorship, affiliation or endorsement of similar products of the Respondent on its website. The Complainant further contends that the Respondent is engaged in a fraudulent use of its website under the KPN Trademark, to offer different brands of telecommunication products to consumers and not delivering the goods to consumers who have ordered and paid for them. The Respondent maintains this fraudulent attitude despite attempts by such deceived customers to recover their payment without success. The Complainant claims that the Respondent is using the disputed domain name 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 that it has trademark rights and good will in the KPN Trademark as well as in the KPN Logo Trademark. The disputed domain name incorporates the KPN Trademark and the descriptive term "mobiel" which in English means "mobile" and is clearly descriptive of qualities of certain products sold by the Complainant such as mobile telephones. It is well established in UDRP decisions that such addition of a descriptive term and of the suffix ".com" to the trademark does not diminish in any way the confusing similarity with the KPN Trademark.
The Panel finds that the disputed domain name is confusingly similar with the KPN Trademark of the Complainant.
The first criterion of the Policy has been met. B. Rights or Legitimate Interests
The Complainant has established a prima facie case in stating that the Respondent does not own any KPN Trademark, is not known by the disputed domain name, does not have any trademark use or registration incorporating the disputed domain name prior to its registration and is not making a legitimate noncommercial or fair use of the disputed domain name but is rather engaged in a fraudulent use of its website at the address of the disputed domain name.
Not only has the Respondent failed to adduce any evidence to rebut this prima facie case, the Complainant has clearly shown the fraudulent activities of the Respondent in the use of the website at the disputed domain name. Under the KPN logo Trademark, the website is used to offer mobile telephones, in competition with those offered by the Complainant as if it was associated with the Complainant and furthermore this is not of a unique situation of the Respondent, the latter having similarly been using the domain name also in the Netherlands.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The second criterion of the Policy has been established. C. Registered and Used in Bad Faith
The Complainant has shown its extensive and long use of its KPN Trademarks in the Netherlands and its operation of more than 100 KPN stores and 15 KPN business centers in the Netherlands, millions of people receive telecommunication services such as offering Internet, television services, mobile communications, mobile and fixed line telephones in the Netherlands where the Complainant appears in commercials and advertisements on every national television channels and where it is also subject to the attention by the national press on the one hand and the presence of the KPN logo Trademark on the Respondent's website, in a way similar to that present on the Complainant's website on the other hand, it is clear to the Panel that the Respondent was aware of the existence of the KPN and KPN logo Trademarks of the Complainant when the disputed domain name was registered without authorization nor with any authorization from the Complainant to reproduce or use its KPN Trademarks.
The Panel therefore finds that the disputed domain name was registered in bad faith.
The Respondent, pursuant to the registration of the disputed domain name, operated a website at the address of the disputed domain name. The Respondent's website had, on the front page, the clear prominent presence of Complainant's KPN logo Trademark and mobile telephones were offered on sale thereby causing Internet visitors to think that they were visiting the website of the Complainant or one of its distributors or affiliates. Such use in bad faith is confirmed by the behavior of the Respondent in cashing the payment of a mobile telephone, EUR 250, purchased on January 7, 2015, without sending the apparatus and resisting the attempt of the frustrated consumer in an online consumer support conversation to annul the sale and recover the payment made, the whole without success.
Subsequent to being informed of this fraudulent event, the Complainant wrote to the Registrar to complain about this behavior and requested that the disputed domain name be rendered inoperative which was done on the same day, January 7, 2015.
The Panel finds that such use of the disputed domain name is use in bad faith
The third criterion of the Policy has 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.
J. Nelson Landry
Sole Panelist
Date: April 6, 2015
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