The Complainant is Eurodrive Services and Distribution N.V of DT Drunen, Netherlands, represented by Dreyfus & associés, France.
The Respondent is Emir Aslan of Vleuten, RJ, Netherlands. 2. The Domain Name and Registrar
The disputed domain name (“Domain Name”) is registered with Tucows Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 19, 2016. On January 19, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 19, 2016, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 27, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 16, 2016. The Respondent did not submit any response save for its email communication to the Center on February 3, 2016. On February 17, 2016, the Center notified the Parties that it will proceed to Panel Appointment.
The Center appointed Willem J. H. Leppink as the sole panelist in this matter on February 25, 2016. 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 following facts are undisputed.
The Complainant is one of the key players in the tire and car maintenance field and is the largest network of tire service and car maintenance companies in Europe. It serves private customers, truck customers, lease customers, agricultural and industrial customers and is present in 17 European countries with 2,339 locations.
Euromaster is aware of the high and often complex requirements of a professional fleet and trucks. As European market leader, it helps thousands of carriers annually in more than 1,700 European locations, on site and on the road. In the Netherlands alone, there are more than 100 service facilities for truck drivers strategic locations.
The Complainant is the owner of various EUROMASTER trademarks in Europe. In particular the Complainant has rights in the Benelux trademarks EUROMASTER with registration numbers 0495020 and 0798204, applied for on January 15, 1991 and March 7, 2006 for goods and services in classes 12, 37 and 39 (the “Trademark”).
The Domain Name was registered on May 20, 2015. 5. Parties’ Contentions A. Complainant
Insofar as relevant, the Complainant contends the following:
The Domain Name is identical or at least confusingly similar to the Complainant’s trademark EUROMASTER. Indeed, the Domain Name substantially reproduces the Complainant’s Trademark in its entirety which previous UDRP panels have considered to be a well-established business through various European countries and to have developed a degree of secondary meaning in relation to its particular services.
Accordingly, by registering Domain Name, the Respondent created a likelihood of confusion with the Complainant’s Trademark. It is likely that the Domain Name could mislead Internet users into thinking that it is, in some way, associated with the Complainant.
In the present case, the confusing similarity between the Trademark and the Domain Name is heightened when the new generic Top-Level Domain (“gTLD”) “.frl” is included in the assessment. Indeed, the new gTLD “.frl” represents the Internet top-level domain for the province Friesland in the Netherlands (known in the regional language as “Fryslân”) which is directly and closely related to the Complainant’s garages found in this region.
The Respondent is not affiliated with the Complainant in any way nor has he been authorized by the Complainant to use and register the Trademark, or to seek registration of any domain name incorporating the Trademark. Furthermore, the Respondent has no prior rights or legitimate interests in the Domain Name.
Moreover, the Domain Name obviously refers to its activities in Friesland. The Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the Domain Name.
Besides, the Domain Name resolves to the default page of the webhost which can be assimilated to an inactive page. The Respondent has not made any reasonable and demonstrable preparations to use the Domain Name. Consequently, the Respondent fails to show any intention of noncommercial or fair use of the Domain Name. It is most likely to be believed that the Respondent has no rights or legitimate interests in the Domain Name.
It is implausible that the Respondent was unaware of the Complainant’s Trademark when it registered the Domain Name.
Firstly, the Complainant has its registered office in Netherlands – the home country of the Respondent. Secondly, several UDRP panels have previously mentioned its reputation in the European region, making it unlikely that the Respondent was not aware of the Complainant’s proprietary rights in the Trademark. Thirdly, as the composition of the Domain Name entirely reproduces the Trademark while the new gTLD refers to the Complainant’s activities in Friesland, it is impossible that the Respondent had not this Trademark in mind while registering the Domain Name.
In view of the above mentioned circumstances, there is no doubt concerning the Respondent’s knowledge of the existence of the Complainant, its activities and the Trademark at the time of the registration of the Domain Name. Given the reputation of the Trademark in Europe, registration in bad faith can be inferred.
A quick trademark search would have revealed to the Respondent the existence of the Complainant and the Trademark. The Respondent’s failure to do so is a contributory factor to its bad faith.
In light of the reputation of the Complainant’s Trademark, it is unlikely that the Respondent was unaware that the Complainant owns trademark rights in the Trademark.
The Domain Name is currently inactive. It has been seen in previous UDRP decisions that such state of inactivity does not mean that the Domain Name is used in good faith.
The Complainant’s registered office is located in the Netherlands and the Complainant is also present is several parts of Netherlands including Friesland where it has four Euromaster garages. Similarly, reproducing a trademark enjoying a strong reputation in Europe, and in particular in Netherlands which is also the Respondent’s home country, in a domain name in order to attract Internet users to an inactive website cannot be regarded as fair use or use in good faith.
Finally, it is likely that the Respondent registered the Domain Name to prevent the Complainant from using its Trademark in the Domain Name. According to previous UDRP panels, this type of conduct constitutes evidence in bad faith.
Consequently, it is established that the Respondent both registered and used the Domain Name in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant must demonstrate that it has rights in a trademark and, if so, the Domain Name must be shown to be identical or confusingly similar to the Trademark.
The Domain Name is identical or at a minimum confusingly similar to Complainant’s Trademark, as it incorporates Complainant’s trademark in its entirety. The addition of the gTLD “.frl” does not diminish the confusing similarity between the Domain Name and the Trademark.
The Panel also takes into account that Internet users considering the Domain Name without awareness of its content may believe that the Domain Name is in some way connected and associated with the Complainant (see Covance, Inc. and Covance Laboratories Ltd v. The Covance Campaign,WIPO Case No. D2004-0206; CBS Broadcasting Inc., f/k/a CBS Inc. v. Nabil Z. aghloul,WIPO Case No. D2004-0988).
For all the foregoing reasons, the Panel is satisfied that the first element of the Policy is met. B. Rights or Legitimate Interests
The Respondent did not reply to the Complainant’s contentions. For that reason, the Panel has taken careful note of the factual assertions that have been made and supported by evidence by the Complainant.
In particular, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has rights or legitimate interests in the Domain Name, such as:
(i) use or preparation to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services prior to notice of the dispute; or
(ii) being commonly known by the Domain Name (as an individual, business or other organization) even if the Respondent has not acquired any trademark or service mark rights; or
(iii) making legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There is no evidence in the case file that the Respondent has any rights or legitimate interests in the Domain Name.
The Respondent does not seem to be affiliated with the Complainant in any way. There is no evidence that “euromaster” is the Respondent’s name or that the Respondent is commonly known as “euromaster”. There is also no evidence that the Respondent is, and has ever been, a licensee of the Complainant and that the Respondent has ever asked, and has ever been permitted in any way by the Complainant to register or use the Complainant’s Trademark, or to apply for or use any domain name incorporating the Trademark.
Furthermore, the use of the Domain Name cannot be considered a bona fide offering of goods or services. In particular, the Respondent did not demonstrate any use or demonstrable preparation to use the Domain Name in connection with a bona fide offering of goods or services as the Respondent is using the Domain Name at all as it is currently inactive. It is also clear that the Respondent is not making any legitimate noncommercial or fair use of the Domain Name.
Finally, given the circumstance of this case, the Panel finds that the Respondent’s lack of rights or legitimate interests in the Domain Name may also be inferred by the fact that no response was filed by the Respondent. According to earlier UDRP decisions,“non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights” (see Pomellato S.p.A. v. Richard Tonetti,WIPO Case No. D2000-0493 and GA Modefine S.A. and Giorgio Armani S.p.A. v. Yoon-Min Yang,WIPO Case No. D2005-0090).
Therefore, based on the evidence on the records, the Panel is satisfied that the second element of the Policy is met. C. Registered and Used in Bad Faith
The Panel finds that the Domain Name was registered and is being used in bad faith.
In light of the evidence filed by the Complainant and the absence of a response from the Respondent, the Panel finds that the Complainant and its Trademark are well-known throughout the world. Accordingly, in the Panel’s view, the Respondent must have been aware of the Complainant’s existence and rights when it registered the Domain Name. A cursory search on the Internet would have revealed the notoriety of the Complainant and its Trademark. This is emphasized by the fact that the Domain Name is parked and that the Complainant’s registered office is located in the Netherlands.
This behavior of the Respondent fits the example of paragraph 4(b)(iv) of the Policy, i.e., by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s Trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.
Although the lack of a response by the Respondent as such cannot by itself lead to the conclusion that there is use in bad faith, the cumulative circumstances as outlined in the decision are sufficient for the Panel to find that the use by the Respondent is in bad faith.
In light of the above circumstances, the Panel is satisfied that the third element of the Policy is met and that the 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 Domain Name, , be transferred to the Complainant.
Willem J. H. Leppink
Sole Panelist
Date: March 10, 2016
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