Complainant is Alliander N.V. of Arnhem, the Netherlands, represented by Allen & Overy LLP, the Netherlands.
Respondent is Matthias Grundlii, Grunli Massa of Lystrup, Denmark, represented by Asento Merlawi, Kyrgyzstan. 2. The Domain Names and Registrar
The disputed domain names , , , , , , and (the "Disputed Domain Names") are registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 9, 2017. On June 9, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Names. On June 11, 2017, 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 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 June 15, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 5, 2017. The Response was filed with the Center on July 4, 2017.
The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on July 12, 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, Alliander N.V., is a Dutch utility company that facilitates the distribution of energy for roughly a third of the territory of the Netherlands. Complainant's wholly owned subsidiary, Liander N.V., manages and operates the gas and electricity network for the Complainant.
Complainant is the holder of inter alia the following Benelux trademarks, which it uses in connection with its business:
- ALLIANDER, word mark, applied for on July 21, 2008 and registered with the Benelux Office for Intellectual Property under No. 0848071 since October 14, 2008, in classes 11, 37, 39, 40 and 42; and
- LIANDER, word mark, applied for on July 15, 2008 and registered with the Benelux Office for Intellectual Property under No. 0848070 since October 14, 2008, in classes 11, 37, 39 and 42.
The Disputed Domain Names were all registered on September 18, 2008. On March 18, 2017, the Disputed Domain Names , , , and were transferred to Respondent. The Disputed Domain Names , and are also registered by Respondent.
Complainant submitted screenshots from May 10, 2017, showing the websites associated to the Disputed Domain Names , , , , and . Complainant also submitted an undated screenshot showing the website associated to the Disputed Domain Name . These screenshots show that the abovementioned Disputed Domain Names were used to refer to a website containing an almost exact copy of Complainant's homepage, but with a different text, in which Complainant's business was being criticized. No similar screenshot was submitted with respect to the Disputed Domain Name .
Complainant also submitted screenshots from May 15, 2017, for all Disputed Domain Names, showing that no active website is connected to the Disputed Domain Names on that date.
When the Center formally notified Respondent of the Complaint, the hard copy was returned to shipper, as the contact details provided in the Whois records were incomplete or false. Nevertheless, an email response was received on July 4, 2017 "on behalf of (in continuation of business)" of Respondent. Respondent submitted a screenshot of its account with its registrar showing the Disputed Domain Names being locked. 5. Parties' Contentions A. Complainant
Complainant considers the Disputed Domain Names to be confusingly similar to trademarks in which it claims to have rights. Complainant further claims that Respondent has no rights or legitimate interests in respect of the Disputed Domain Names. According to Complainant, Respondent has not used the Disputed Domain Names in connection with a legitimate use. Also, according to Complainant, Respondent has not been commonly known by the Disputed Domain Names. Finally, Complainant claims that the Disputed Domain Names were registered and are being used in bad faith. Complainant submits that the Disputed Domain Names reverted to a website which was an almost full copy of Complainant's homepage, but containing slanderous content. B. Respondent
Respondent claims that he acquired the business which includes the Disputed Domain Names on June 1, 2017. However, Respondent would not have been able to perform the transfer of the Disputed Domain Names, as these domain names were locked. Respondent considers that he might be responsible since he acquired the whole business including the Disputed Domain Names. According to Respondent, the name Liander in the disputed domain names stands for "lion man" and is used as a male name. Respondent submits that he has been nicknamed Liander by someone from Europe on the market in Osh, Kyrgyzstan. Respondent argues that he will not target the Benelux trademark but that he wants to use the Disputed Domain Names for posting a schedule when he will be on the market in Osh, Kyrgyzstan. Respondent further disputes the screenshots that were made of the websites associated to the Disputed Domain Names, arguing that he is unable to find these screenshots on Internet archiving pages. Finally, Respondent considers that he has a good faith interest in the Disputed Domain Names, and that everyone outside the Benelux with a good faith interest would have the right to own or buy the Disputed Domain Names. 6. Discussion and Findings
Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
The onus is on Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that Complainant must show that all three elements set out in paragraph 4(a) of the Policy have been established before any order can be made to transfer the Disputed Domain Names. As the proceedings are administrative, the standard of proof is the balance of probabilities.
Thus for Complainant to succeed, it must prove, within the meaning of paragraph 4(a) of the Policy and on the balance of probabilities that:
i. the Disputed Domain Names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and
iii. the Disputed Domain Names have been registered and are being used in bad faith.
The Panel will deal with each of these requirements in turn. A. Identical or Confusingly Similar
To prove this element, Complainant must first establish that there is a trademark or service mark in which it has rights. Complainant has clearly established that there are registered LIANDER and ALLIANDER trademarks in which Complainant has rights.
The Panel notes that the Disputed Domain Names , , , , , , and incorporate the Complainant's ALLIANDER casu quo LIANDER trademark in their entirety. The Panel is of the opinion that the addition of generic Top-Level Domains ("gTLDs") can be disregarded when comparing the similarities between a domain name and a trade mark (See Bialetti Industrie S.p.A. v. Onno Brantjes, Stichting Taxaceae,WIPO Case No. D2016-1450; Canyon Bicycles GmbH v. Domains By Proxy, LLC / Rob van Eck,WIPO Case No. D2014-0206; Zions Bancorporation v. Mohammed Akik Miah,WIPO Case No. D2014-0269). Therefore, the Panel considers the Disputed Domain Names to be identical to the Complainant's ALLIANDER casu quo LIANDER trademark.
Accordingly, Complainant has made out the first of the three elements that it must establish. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, a complainant has the burden of establishing that the respondent has no rights or legitimate interests in respect of the disputed domain name.
It is well established under the Policy that it is sufficient for a complainant to make a prima facie showing that the respondent has no rights or legitimate interests in the disputed domain name in order to place the burden of production on the respondent. See, Champion Innovations, Ltd. v. Udo Dussling (45FHH),WIPO Case No. D2005-1094; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110.
The Panel notes that Respondent has not apparently been commonly known by the Disputed Domain Names and that Respondent does not seem to have acquired trademark or service mark rights. Respondent's registration and use of the Disputed Domain Names was not authorized by Complainant. There are no indications that a connection between Complainant and Respondent existed. For the reasons that the Panel sets out when assessing whether the Disputed Domain Names were registered and used in bad faith, the Panel is of the view that the Disputed Domain Names were registered and/or acquired with the Complainant' marks in mind.
Respondent cannot point to any name or mark that he is using that would be similar to the Disputed Domain Names. In this respect, Respondent's allegation that he has been nicknamed Liander at a local market is unsupported and considered irrelevant in view of the circumstances of the case. First, Respondent fails to explain why he registered domain names containing the name "alliander" as well, if it was not to target Complainant. Second, and more importantly, Respondent has been using at least the bulk of the Disputed Domain Names for the purpose of impersonating Complainant and for providing criticizing, and likely slanderous, material on Complainant. Such deceitful use of the Disputed Domain Names cannot be considered genuine, legitimate or fair according to this Panel (see Triodos Bank NV v. Ashley Dobbs,WIPO Case No. D2002-0776).
Respondent's defense that it acquired the business only recently is ineffective. Respondent provides no evidence showing that the Disputed Domain Names were transferred, and Respondent recognizes itself that it is responsible for the business it allegedly acquired. The fact that the name of registrar account under which the Disputed Domain Names are registered is different from the Registrant's name is no evidence that the Disputed Domain Names were transferred or about to be transferred when the Complaint was filed. The Panel observes that Respondent used incomplete or false contact details in the Whois records; nothing warrants that the information in Respondent's registrar account is correct.
In view of the above, the Panel finds that Complainant has established that Respondent has no rights or legitimate interests in the Disputed Domain Names. C. Registered and Used in Bad Faith
Complainant must prove on the balance of probabilities both that the Disputed Domain Names were registered in bad faith and that they are being used in bad faith (see, e.g., Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd,WIPO Case No. D2006-1052).
Paragraph 4(b) of the Policy provides a non-exclusive list of factors, any one of which may demonstrate bad faith. Among these factors are (i) the registration of a domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct, and (ii) the registration of a domain name primarily for the purpose of disrupting the business of a competitor. Using a domain name to tarnish a complainant's mark (e.g., by posting false or defamatory content) may also constitute evidence of bad faith (See WIPO Overview 3.0, Section 3.12).
In the instant case, Respondent must have known of Complainant when acquiring the Disputed Domain Names. Complainant shows that the bulk of the Disputed Domain Names was transferred to Respondent March 18, 2017 and infers that the remaining Disputed Domain Names were transferred on the same date. Respondent did not challenge the fact that all of the Disputed Domain Names were registered in Respondent's name on March 18, 2017 or on May 10, 2017, when Complainant made screenshots of websites associated to, at least part of, the Disputed Domain Names. There is no reason to doubt that these screenshots are genuine; Complainant also provided a press article in which mention was made of the litigious screenshots. The Panel considers that the nature of the information on the websites linked to the Disputed Domain Names creates at least an inference that Respondent was aware of Complainant at the time of registration of the Disputed Domain Name (see Delta-Sonic Carwash Systems, Inc. v. Radio plus, spol.s r.o.,WIPO Case No. D2015-1512). The websites were linked to the Disputed Domain Names shortly after they were transferred to Respondent, and they consist of an almost exact copy of the look and feel of Complainant's website. The Panel therefore finds that Respondent's awareness of Complainant's trademark rights at the time of registration suggests bad faith (see Red Bull GmbH v. Credit du Léman SA, Jean-Denis Deletraz,WIPO Case No. D2011-2209).
Respondent did not register one, but multiple domain names incorporating Complainant's mark, hereby engaging in a pattern. While this pattern may not make it impossible for Complainant to reflect its mark in a corresponding domain name, such a pattern is disruptive and possibly damaging Complainant's reputation. In combination with the posting of false, and possibly slanderous, content on an almost exact copy of Complainant's website, it is apparent that Respondent used the Disputed Domain Names to tarnish Complainant's mark. That Respondent may have stopped using the Disputed Domain Names is such manner prior to the date on which the Complaint was filed is irrelevant. ALH Group Pty Ltd v. Naveen Mathur,WIPO Case No. D2015-2004. In this regard and taking into account that no evidence as to the active use of the Disputed Domain Name has been provided, the Panel additionally notes that an apparent lack of active use of a domain name does not prevent a finding of bad faith, taking into account the cumulative circumstances, see WIPO Overview 3.0, section 3.3.
Moreover, the fact Respondent provided incomplete or false contact information in the Whois records suggests, in the circumstances of the case, that Respondent was aware of its unlawful activity and elected to hide its identity.
In view of the above, the Panel finds that it is patently clear that the Disputed Domain Names were registered and are 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 Disputed Domain Names, , , , , , and be transferred to the Complainant.
Flip Jan Claude Petillion
Sole Panelist
Date: July 28, 2017
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