Complainant is Delta Lloyd N.V. of Amsterdam, the Netherlands, represented by Novagraaf Nederland B.V., the Netherlands.
Respondent is WhoisGuard Protected, WhoisGuard, Inc. of Panama, Panama / Sergey Korotkov, of Moscow, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with NameCheap, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 21, 2017. On March 21, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 22, 2017, 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. The Center sent an email communication to Complainant on March 23, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on March 24, 2017.
The Center verified that the Complaint together with 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on March 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 17, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 18, 2017.
The Center appointed Torsten Bettinger as the sole panelist in this matter on April 24, 2017. 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
Complainant is a Netherlands insurance company with operations in the Netherlands, Belgium and Germany. It has been active under its trade name as of 1969 and since then has become a market leader in its field in the Netherlands.
Complainant is the owner of various national and international trademark registrations for DELTA LLOYD dating back to 1987 for, inter alia, insurance and financial services in several jurisdictions, including:
Jurisdiction
Mark
Registration No.
Registration date
Classes
Benelux registration
DELTA-LLOYD
0151615
August 1, 1987
36 (Insurance and Finance)
Benelux registration
DELTA LLOYD
0151597
August 1, 1987
36 (Insurance and Finance)
Benelux registration
DELTA LLOYD
0680871
July 1, 2001
36 (Insurance and Finance)
European Union Trade Mark ("EUTM") registration
DELTA LLOYD
002102788
February 2, 2002
36 (Insurance and Finance)
International registration
DELTA LLOYD
758573
April 19, 2001
36 (Insurance and Finance)
Complainant has used these trademarks in commerce in the Netherlands, Belgium and Germany.
Complainant controls numerous domain names containing the trademark DELTA LLOYD, including , , , and .
Respondent registered the disputed domain name on February 4, 2017. Respondent uses the disputed domain name for a pay-per-click ("PPC") website with links to insurance companies. 5. Parties' Contentions A. Complainant
Complainant submits that the disputed domain name is confusingly similar to its trademarks DELTA LLOYD, that Respondent has no rights or legitimate interests in the disputed domain name and that Respondent has registered and is using the disputed domain name in bad faith.
With regard to the confusing similarity between the trademark and the domain name, Complainant argues that the disputed domain name incorporates its trademark DELTA LLOYD in its entirety and that the addition of the generic Top-Level Domain ("gTLD") ".top" is irrelevant in considering whether the disputed domain name is confusingly similar to Complainant's trademark.
With regard to Respondent having no rights or legitimate interests in the disputed domain name, Complainant submitted that (1) it has not at any time been commonly known by the disputed domain name, (2) it is not aware of any trade marks in which Respondent may have rights that are identical or similar to the disputed domain name and (3) that by using the disputed domain name for a PPC parking website with links to competitors of Complainant, Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
With regard to the disputed domain name having been registered and being used in bad faith, Complainant argues that Complainant's longstanding use and reputation of the trademark DELTA LLOYD indicates that Respondent has been aware of Complainant's rights at the time of registration of the disputed domain name and that by using the disputed domain name for a PPC parking website, Respondent has intentionally attempted to attract Internet users to an online location for commercial gain by creating a likelihood of confusion with Complainant's DELTA LLOYD trademark as to the source, sponsorship, affiliation or endorsement of Respondent's website. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
The disputed domain name is confusingly similar to Complainant's DELTA LLOYD trademarks.
It is well established that the test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone, independent of the products for which the domain name is used or other marketing and use factors usually considered in trademark infringement cases. (See Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic,WIPO Case No. D2000-1698; Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd.,WIPO Case No. D2001-0110; Dixons Group Plc v. Mr. Abu Abdullaah,WIPO Case No. D2001-0843; AT&T Corp. v. Amjad Kausar,WIPO Case No. D2003-0327; British American Tobacco (Brands), Inc. v. NABR,WIPO Case No. D2001-1480).
In this case, the disputed domain name incorporates Complainant's trademark in its entirety. It has been long established by previous UDRP panels that the specific gTLD designation such as ".com", ".net" or ".org" is generally not to be taken into account when assessing the issue of identity or confusing similarity, except in certain cases where the applicable gTLD may itself form part of the relevant trademark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 1.2).
The disputed domain name consists of Complainant's DELTA LLOYD trademark in its entirety, absent the space between "Delta" and "Lloyd", together with the gTLD ".top".
The Panel concludes that the disputed domain name is identical to Complainant's marks DELTA LLOYD in which Complainant has rights. B. Rights or Legitimate Interests
A respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
"(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a 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."
Because Respondent did not file a Response, there is no evidence showing that Respondent is a licensee of, or otherwise affiliated with Complainant, and has been authorized by Complainant to use its DELTA LLOYD trademark.
There is also no evidence that Respondent has been commonly known by the disputed domain name, or has made a bona fide use of, the disputed domain name, or that it has, for any other reason, rights or legitimate interests in the disputed domain name.
The evidence provided by Complainant demonstrates that the sole use of the disputed domain name is to resolve to PPC website and collect click-through revenue from advertising links.
It is well-established that operating a PPC parking page may be permissible in some circumstances, but does not of itself confer rights or legitimate interests arising from a "bona fide offering of goods or services" when a respondent is making unauthorized use of the trademark of another, particularly when the concerned links include competitors of the complainant, as is the case here (see WIPO Overview 2.0, paragraph 2.6.).
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
For the purposes of determining if there was bad faith registration and use, the Panel considered the circumstances of the registration and use of the disputed domain name as set out in paragraph 4(b) of the Policy, noting that it does not impose any limitation on how the registration and use of a disputed domain name in bad faith is evidenced.
Based on the record in this proceeding, the Panel is satisfied that Complainant's DELTA LLOYD mark is well-known in the Netherlands. As the disputed domain name reproduces the mark in its entirety, the Panel concludes that on the balance of probabilities Respondent was aware of Complainant's trademark at the time of registration of the disputed domain name.
This and the fact that the website available under the disputed domain name provides multiple advertising links to services of third parties competing with those of Complainant demonstrates that the main purpose of the registration of the disputed domain name is to collect click-through revenue from advertising links.
This is sufficient to satisfy the Panel that by using the disputed domain name, 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 Complainant's DELTA LLOYD mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location within the meaning of paragraph 4(b)(iv) of the Policy.
Respondent's use of the disputed domain name with the intention to attract Internet users for commercial gain is established by the advertising links on its website.
The likelihood of confusion as to source, sponsorship, affiliation or endorsement is established by the fact that the disputed domain name is identical to the DELTA LLOYD trademark and Complainant's own domain names.
The fact that the website at the disputed domain name includes links to sites offering competing products as Complainant aggravates the likelihood of confusion (see Manheim Auctions Inc. v. Whois ID Theft Protection,WIPO Case No. D2006-1044; Fresh Intellectual Properties, Inc. v. Matt Braska,WIPO Case No. D2005-0096 and Nine West Development Corporation v. Registrant [1168318] / Moniker Privacy Services/Registrant [1260512]: Domain Administrator,WIPO Case No. D2008-0154; Quixtar Investments, Inc. v. Dennis Hoffman,WIPO Case No. D2000-0253; and Advance Magazine Publishers Inc. v. Pablo Palermao,WIPO Case No. D2008-0026, which state that bad faith is evidenced where a respondent uses virtually the same mark as a domain name and where a respondent attempts to trade on the goodwill associated with a mark in which the complainant has rights).
On the basis of the evidence put forward by Complainant, the Panel is therefore satisfied that Respondent has registered and is using the disputed domain name in bad faith, in accordance with paragraph 4(b)(iv) of the Policy. 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 Complainant.
Torsten Bettinger
Sole Panelist
Date: May 8, 2017
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