The Complainant is Vitol Holding B.V., the Netherlands, represented by NLO Shieldmark B. V., the Netherlands.
The Respondent is Vyatchinova O Greta, the Russian Federation.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on September 1, 2021. On September 2, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 3, 2021, 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 the Complainant on September 7, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on September 28, 2021.
On September 7, 2021, the Center sent an email communication regarding the language of the proceeding in both Russian and English. On September 21, 2021, the Complainant confirmed its request to proceed in English, and the Respondent did not submit any comments.
The Center verified that the Complaint together with the amendment to 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 in English and Russian, and the proceedings commenced on September 29, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 19, 2021. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on September 27, 2021.
The Center appointed Taras Kyslyy as the sole panelist in this matter on November 17, 2021. 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.
On December 22, 2021, in accordance with the Rules, paragraph 12, the Panel issued Procedural Order 1, requesting evidence from the Parties on their respective business locations, and inviting the Parties to provide further arguments an information in support of their claims. On December 22, 2021 the Complainant provided its response to the Procedural Order 1. The Respondent did not submit any response to the Procedural Order 1.
4. Factual BackgroundThe Complainant is a company incorporated in the Netherlands. The Complainant is active in the field of energy storage and related services. The Complainant owns MARTANK trademark under the Benelux trademark registration No. 1405514, registered on January 28, 2020. The Complainant asserts that Martank B.V. is a part of its group of companies. According to the documents provided by the Complainant Martank B.V. was established in 1976 and employs 2 persons. The Complainant asserts that the disputed domain name was taken down some time ago based on its complaint and refers to email correspondence dated September 4, 2019.
In response to Procedural Order 1, the Complainant provided documentary evidence confirming it has its business location at K.P. van der Mandelelaan 130 3062 MB Rotterdam.
The disputed domain name was registered on October 28, 2020 and resolves to a website of Martank B.V. company offering oil storage and transshipment services, claiming it has its business location at K.P. van der Mandelelaan 130 3062 MB Rotterdam. Although, the website is in Dutch language, it contains a page with text both in Dutch and English with a warning about false representatives of the company.
5. Parties’ Contentions A. ComplainantThe disputed domain name is identical or confusingly similar to the Complainant’s trademark. The disputed domain name consists of the wording “martankbv”. The wording “bv” refers to “Besloten Vennootschap”, which is an entity type. The wording “martank” is identical to the Complainant’s trademark. The Complainant has also used the name “Martank” for a long time, which is confirmed by the fact that company Martank B.V. was established in 1976. Martank B.V. is part of the Vitol Group. The disputed domain name contains a website that makes it look as if it is coming from the Complainant, while in fact this is not the case. The disputed domain name is solely registered and in use to gain financial income from third parties who will be misled by the actual origin of the website. Finally, the disputed domain name may severely harm the Complainant’s rights and reputation.
The Respondent has no rights or legitimate interests in the disputed domain name, since the Respondent has no prior (trademark/tradename) rights in MARTANK name.
The disputed domain name was registered and is being used in bad faith. The website under the disputed domain name is created in such a manner that it looks like an official website, coming from the Complainant, while this is not the case.
B. RespondentThe Respondent did not reply to the Complainant’s contentions. In response to Center’s email regarding Notification of Complaint the Respondent commented that the disputed domain name was deleted.
6. Discussion and Findings A. Language of ProceedingsThe language of the Registration Agreement for the disputed domain name is Russian. Paragraph 11(a) of the Rules provides that “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding”. The Panel may also order that any documents submitted in a language other than that of the proceeding be translated.
However, as noted by previous UDRP panels, paragraph 11 of the Rules must be applied in accordance with the overriding requirements of paragraphs 10(b) and 10(c) of the Rules that the parties are treated equally, that each party is given a fair opportunity to present its case and that the proceeding takes place with due expedition (see, e.g., General Electric Company v. Edison Electric Corp. a/k/a Edison Electric Corp. General Energy, Edison GE, Edison-GE and EEEGE.COM,WIPO Case No. D2006-0334).
In deciding whether to allow the proceedings to be conducted in a language other than the language of the Registration Agreement, and to require the Complainant in an appropriate case to translate the Complaint into the language of that agreement, the Panel must have regard to all “the relevant circumstances” of the case. The factors that the Panel should take into consideration include whether the Respondent is able to understand and effectively communicate in the language in which the Complaint has been made and would suffer no real prejudice, and whether the expenses of requiring translation and the delay in the proceedings can be avoided without at the same time causing injustice to the Parties.
According to section 4.5.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) previous panels have found that certain scenarios may warrant proceeding in a language other than that of the registration agreement. Such scenarios include (i) evidence showing that the respondent can understand the language of the complaint, (ii) the language/script of the domain name particularly where the same as that of the complainant’s mark, (iii) any content on the webpage under the disputed domain name, (iv) prior cases involving the respondent in a particular language, (v) prior correspondence between the parties, (vi) potential unfairness or unwarranted delay in ordering the complainant to translate the complaint, (vii) evidence of other respondent-controlled domain names registered, used, or corresponding to a particular language, (viii) in cases involving multiple domain names, the use of a particular language agreement for some (but not all) of the disputed domain names, (ix) currencies accepted on the webpage under the disputed domain name, or (x) other indicia tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.
The Complainant has submitted a request that the language of the proceedings be English. The Complainant contends that the Respondent must be familiar with the English language since (i) the disputed domain name is in Dutch language, and Dutch speaking person normally speaks English, (ii) English is the number one world language.
The Panel further notes that the website at the disputed domain name provides also for English wording, confirming the Respondent targets English speaking audience and understands the language.
The Panel also noted that no objection was made by the Respondent to the proceeding being in English nor any request made that the proceedings be conducted in Russian, the language of the Registration Agreement. This was despite the Center notifying the Respondent in Russian and English that the Respondent is invited to present its objection to the proceedings being held in English and if the Center did not hear from the Respondent by a certain date, the Center would proceed on the basis that the Respondent had no objection to the Complainant’s request that English be the language of the proceedings. The Respondent had the opportunity to raise objections or make known its preference, but did not do so.
The Panel also finds that substantial additional expense and delay would likely be incurred if the Complaint had to be translated into Russian.
Taking all these circumstances into account, the Panel finds that it is appropriate to exercise its discretion and allow the proceedings to be conducted in English.
B. Identical or Confusingly SimilarThe Complainant has established rights in MARTANK based on the registered trademark mentioned above.
According to section 1.11.1 of the WIPO Overview 3.0 the applicable generic Top-Level Domain (“gTLD”) in a domain name (e.g., “.com”, “.club”, “.nyc”) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. Thus, the Panel disregards gTLD “.com” for the purposes of the confusing similarity test.
According to section 1.7 of the WIPO Overview 3.0 in cases where a domain name incorporates the entirety of a trademark the domain name will normally be considered identical or confusingly similar to that mark for purposes of UDRP standing. The Panel finds that in the present case the disputed domain name incorporates the entirety of the Complainant’s trademark.
According to section 1.8 of the WIPO Overview 3.0 where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The Panel finds that the addition of “bv” letters does not prevent finding the confusing similarity.
Considering the above the Panel finds the disputed domain name is confusingly similar to the Complainant’s trademark, therefore, the Complainant has established its case under paragraph 4(a)(i) of the Policy.
C. Rights or Legitimate InterestsAccording to section 2.1 of the WIPO Overview 3.0 while the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.
In the present case, the Panel would have expected the Complainant to at least refer to the non-exhaustive factors evidencing lack of rights or legitimate interests set out in paragraph 4(c) of the Policy and to discuss at least those, which were most relevant.
Instead, the Complainant’s original one-sentence submission contends that the Respondent lacks rights or legitimate interests, since the Respondent has no prior (trademark/tradename) rights in MARTANK name.
In the Panel’s view, the Complainant has failed to make out even a prima facie case in accordance with the principles set out in paragraph 2.1 of the WIPO Overview 3.0.
The Panel however notes that the disputed domain name redirects Internet users to a website with a logo similar to the Complainant’s trademark and containing the actual Complainant’s address which may cause Internet users believe that they access the website of the Complainant or authorized by the Complainant, which is not the case. At the same time the contact email address at the disputed domain name, while showing to the user an email address featuring the disputed domain name, actually links to the Respondent’s own site and email address using a different domain name. Past UDRP panels confirmed that such actions prove registrant has no rights or legitimate interests in a disputed domain name (see Daniel C. Marino, Jr. v. Video Images Productions, et al.,WIPO Case No. D2000-0598, Houghton Mifflin Co. v. Weatherman, Inc.,WIPO Case No. D2001-0211). The Panel moreover notes that the site has since been deleted after the receipt of a Panel Order which affirms a finding in the Complainant’s favor.
Thus, the Panel finds that the second element of paragraph 4(a) of the Policy is established.
D. Registered and Used in Bad FaithAccording to section 3.2.2 of the WIPO Overview 3.0 further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark. In the present case the Respondent after registration of the disputed domain name incorporating the Complainant’s trademark placed a website featuring Complainant's trademark, offering services similar to the Complainant's and using a contact email address at the disputed domain name which shows users an email address featuring the disputed domain name but which is actually linked to the Respondent’s own site and email address using a different domain name. The Panel finds that the nature of the disputed domain name and, in particular, its use – including this email redirection – confirms the Respondent knew or should have known of the Complainant’s prior trademark rights, which confirms the bad faith.
According to paragraph 4(b)(iv) of the Policy the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location. In this case, the disputed domain name is resolving to a website competing with the Complainant and which in the circumstances mentioned above creates a likelihood of confusion with the Complainant’s trademark as to the source of the website and its services.
Thus, the Panel finds that the third element of paragraph 4(a) of the Policy is established.
7. DecisionFor 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,
Taras Kyslyy
Sole Panelist
Date: January 11, 2022