WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Stichting VVV Groep Nederland v. C. Henriquez Case No. DNL2008-0040 1. The Parties
Complainant is Stichting VVV Groep Nederland (“Complainant”), with its registered office at Leersum, the Netherlands, represented by Vereenigde, the Netherlands.
Respondent is C. Henriquez (“Respondent”), an individual, with an address at Talca Chile, Chile. 2. The Domain Names
The disputed domain names , , , , , , , , , , and are registered with SIDN via EASYHOSTING // EASYCOLOCATE (the “Domain Names”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 28, 2008 (e-mail) and September 1, 2008 (hardcopy). On August 29, 2008, the Center transmitted by email to SIDN a request for registration verification in connection with the domain names at issue. On September 1, 2008, SIDN transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Complainant filed the Complaint in English as the Respondent is established in Chile and likely not acquainted with the Dutch language. Respondent did not reply to the English Complaint. In accordance with article 16 of the Regulations, the Center provisionally decided that the Complaint would be accepted in the English language as the Respondent is located outside the Netherlands and the Complainant filed the Complaint in English. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 15.5, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 9, 2008. In accordance with the Regulations, article 7.1, the due date for Response was September 29, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 30, 2008.
The Center appointed Willem J.H. Leppink as the Panelist in this matter on October 3, 2008. The Panelist finds that the Panelist was properly appointed. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 8.2.
As mentioned above, Complainant filed the Complaint in the English language. Respondent has not responded to this Complaint. As Respondent is established in Chile and it is likely that he or she will not be acquainted with the Dutch language, the Panelist agrees with the Center to accept the Complaint in English. Although the Dutch language is in principle the language for procedures under the Regulations, the Panelist determines that the language of this procedure shall be English, as it is important that Respondent, as he or she is probably not acquainted with the Dutch language, will understand the procedure and the decision. 4. Factual Background
Complainant provides, as a market leader, a wide range of leisure, tourist and recreation services in the Netherlands since 1885. The product range of Complainant includes the provision of tourist information for both Dutch and foreign residents on local, regional, national and international level.
Complainant is the owner of the Benelux trademark registration for the wordmark VVV with registration number 621850 for goods and services in classes 16, 35, 39, 41, 42 and 43, filed on June 17, 1997. Subsequently, Complainant is the owner of the Benelux devicemark VVV with registration number 445660 for goods in class 16, filed on May 4, 1988. Furthermore, Complainant is the owner of the Benelux devicemark VVV with registration number 158300 for services in classes 35, 39, 41 and 43, filed on December 15, 1988 (the “Trade Marks”).
Respondent is an individual, named C. Henriquez. Respondent does not use the Domain Names. According to the publicly available WhoIs information of SIDN the Domain Names were registered on the following dates:
December 27, 2000;
September 8, 2005;
February 12, 2002;
February 13, 2002;
February 12, 2002;
February 12, 2002;
February 12, 2002;
February 12, 2002;
February 12, 2002;
February 12, 2002;
February 12, 2002;
September 8, 2005;
Previous to this domain name dispute Complainant and Respondent were also parties to domain name dispute resolution proceedings (ref. WIPO2007NL21), in which Complainant prevailed. The domain names concerned in the aforementioned proceedings, , , and , had initially been registered by Regionaal Bureau voor Toerisme Rivierenland (“RBT”). Until November 1, 2007, RBT was the holder of the four aforementioned domain names. RBT was also the holder of the Domain Name . RBT is not affiliated with Complainant and therefore, RBT was only allowed to use the domain names if RBT would join the VVV organization. Complainant informed RBT about the requirements to join the VVV organization but then the information displayed on the websites linked to these domain names was removed and the domain names were transferred to Respondent.
The Domain Names in this procedure were previously registered by Gelders Overijssels Bureau voor Toerisme (“GOBT”). GOBT is also active in the field of providing tourist information and related services. GOBT was part of the VVV organization until September 2007. In September 2007, GOBT did no longer wish to fulfill the criteria and be part of the VVV organization. GOBT was, as a consequence thereof, no longer entitled to use the certification mark VVV. Complainant found out that shortly thereafter, the Domain names were transferred to Respondent as well. GOBT and RBT are commercial partners. 5. Parties' Contentions A. Complainant
Trade mark and trade name rights
Complainant has claimed to hold rights in the Trade Marks and has submitted copies of these registrations.
Complainant has also claimed to be the owner of the trade name rights in the sign VVV by means of extensive and longstanding use throughout the Netherlands. Complainant submitted documents to prove these rights.
Besides the claimed longstanding, intensive and widespread use of the VVV mark, Complainant has stated that the mark can also be seen as a well-known mark. Furthermore, Complainant has asserted that in all the Domain Names the element “VVV” is the most dominant and distinctive element and this element is identical to the sign on which Complainant owns prior rights. Moreover, Complainant has argued that the elements “rivierenland” and “bommelerwaard” are fully descriptive as these are Dutch regions and the elements “buren”, “tiel”, “druten”, “geldermalsen”, “zaltbommel”, “maasdriel”, “kesteren”, “neerijnen” and “culemborg” are also non-distinctive as these are Dutch cities and villages.
Subsequently, Complainant has stated that it has local and regional offices all over the Netherlands. The majority of these offices have their own website, consisting of the element “VVV” in combination with the name of the town or region and authorized by Complainant. The public, which would like to find out tourist information about a city or region, will automatically search for the domain name . Regarding the Domain Names, there is a risk of confusion among the public which may think that the websites (and the Domain Names) are somehow related to Complainant or at least that the content thereon is authorized or under the supervision of Complainant. Complainant has argued that the Domain Names will be used in the future for commercial purposes.
Complainant has stated that the Domain Names infringe the trade mark VVV and refers to article 2.20(1) b, c and d of the Benelux Treaty on Intellectual Property.
Furthermore, Complainant has argued that, in as far as the use of the Domain Names can be seen as trade name use, this use infringes Complainants trade name right as well. Complainant can object on the basis of this ground as well (article 5 Dutch Trade name Act).
Respondent has no rights or legitimate interests in the Domain Names
Complainant has stated that Respondent has no rights to the sign VVV, nor any legitimate right in the registration (and possible further use) of the Domain Names. The Domain Names all include Dutch wordings, so there is no reason that the Domain Names are of (honest) use by an individual from Chile.
Furthermore, Complainant has argued that research in the Benelux, CTM and International trade mark registers and the commercial register of the Chamber of Commerce found out that no trade mark or trade name rights in the name of Respondent were found which are valid in the Benelux. Complainant has submitted copies of the research. Therefore, the Respondent has no rights or legitimate interest in any of the Domain Names.
Moreover, Complainant has alleged that the Respondent made, as far as Complainant is aware of, no demonstrable preparations to use the Domain Names in connection with a bona fide offering of goods or services.
Finally, Complainant has argued that Respondent is not known by one of the Domain Names. A search for “VVV” revealed no hits for Respondent and vice versa on the internet search engine Google. Complainant has submitted copies of the searches.
The Domain names have been registered or are being used in bad faith.
Complainant has alleged that the Domain Names are still not in use. Complainant has submitted copies of this proposition. Futhermore, Complainant has argued that, considering the fact that Complainant informed the former owner of the Domain Names that it was no longer allowed to use the VVV mark, the transfer of the Domain Names was clearly initiated to frustrate further proceedings and to avoid that Complainant could easily achieve the Domain Names. Complainant has supposed that it is likely that the former owner and Respondent wish to make financial profit from the registration and/or future use of the Domain Names.
Also in the view of the prior proceedings, Complainant has stated that it is clear that Respondent again frustrates Complainant's trade and legitimate interest with the Domain Names. In addition, although members of the VVV organization are not allowed to register VVV trade marks and domain names, the Domain Names were registered. At the time Complainant informed the former owner about the requirements to become part of the organization, the Domain Names were used to force an agreement. By transferring the Domain Names to Respondent (a foreign person), Complainant stated that it is obvious that it will be very difficult to get the Domain Names back without this procedure. Furthermore, initiating full court proceedings to obtain a court order that Respondent is forbidden to register or hold domain names including the element “VVV” will bring along very high costs and take a long time, considering that Respondent is a resident from Chile.
Consequently, Complainant requests the Panelist to decide that Complainant shall become the holder of the Domain Names instead of Respondent. B. Respondent
The Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Article 7.4 of the Regulations provides that, in the event that a respondent fails to submit a response, the complaint shall be granted, unless the Panelist considers it to be without basis in law or in fact.
According to article 2.1 of the Regulations, the requested remedy shall be granted if Complainant asserts and establishes each of the following:
a. that the domain name is identical or confusingly similar to
I. a trade mark, or trade name, protected under Dutch law in which the Complainant has rights;
II. a personal name registered in a Dutch municipal register of persons (“gemeentelijke basisadministratie”), or a name of a Dutch public legal entity or a name of an association or foundation located in the Netherlands under which the Complainant undertakes public activities on a permanent basis; and
b. that Respondent has no rights to or legitimate interests in the domain name; and
c. that the domain name has been registered or is being used in bad faith. A. Identical or Confusingly Similar
Complainant indicates in the Complaint that it relies on its Benelux trade mark and Dutch trade name rights. The submitted copies of the trade mark registrations and evidence regarding trade name use, substantiate Complainant's rights to the Trade Marks and trade name in “VVV”.
In all the Domain Names the element “VVV” is the most dominant and distinctive element and this element is identical to Complainant's Trade Mark and trade name rights. The elements “rivierenland” and “bommelerwaard” in the Domain Names , and are fully descriptive as these are Dutch regions. The elements “buren”, “tiel”, “druten”, “geldermalsen”, “zaltbommel”, “maasdriel”, “kesteren”, “neerijnen” and “culemborg” in the Domain Names , , , , , , , and are also non-distinctive as these are Dutch cities and villages. Therefore the Panelist finds that the Domain Names are confusingly similar to Complainant's Trade Marks and trade name rights.
The Panelist finds that Complainant has complied with the first ground of article 2.1 sub a of the Regulations. B. Rights or Legitimate Interests
According to article 2.1 sub b of the Regulations the Complainant must demonstrate that Respondent has no rights or legitimate interests in the Domain Names. This condition is met if Complainant makes a prima facie case that Respondent has no rights or legitimate interests and Respondent fails to rebut that showing by providing evidence of for example any of the three circumstances mentioned in article 3.1 of the Regulations.
Complainant has put forward that as all the Domain Names include Dutch terms, there is no reason that the Domain Names are of use to an individual from Chile. Furthermore, Complainant has established that there are no indications that Respondent has rights or legitimate interests in the Domain Names as no trade mark or trade name rights in the name of Respondent were found which are valid in the Benelux. Moreover, Complainant has put forward that there are no indications that, before having notice of the dispute, Respondent made demonstrable preparations to use the Domain Names in connection with a bona fide offering of goods or services. Finally, Complainant has established that Respondent is not commonly known by the Domain Names.
Respondent has not disputed Complainant's assertions, nor has the Panelist found any indications that would suggest that Respondent, a) before having notice of the dispute, made demonstrable preparations to use the Domain Names in connection with the bona fide offering of goods or services, b) is commonly known by the Domain Names, or c) is making a legitimate non-commercial use of the Domain Names.
For these reasons, the Panelist finds that Complainant has satisfied article 2.1 sub b of the Regulations. C. Registered or Used in Bad Faith
Pursuant to article 2.1 sub c of the Regulations Complainant must demonstrate that the Domain Names have been registered or are being used in bad faith.
Complainant, in accordance with article 3.2 of the Regulations, has stated circumstances which suggest that the Domain Names have been registered or are being used in bad faith. The Domain Names are still not in use, the transfer of the Domain Names was initiated apparently to avoid that Complainant could easily obtain the Domain Names, the transfer frustrated Complainant's trade and the transfer of the Domain Names to a foreign person futher complicate the Complainant's position. Furthermore, Complainant suspects that Respondent wishes to make financial profit from the registration and/or future use of the Domain Names.
Given the fact that Respondent has not submitted a Response and thus not rebutted Complainant's contentions, the Panelist, on the basis of the evidence submitted by Complainant and the argumentation from Complainant, is satisfied that the Domain Names have been registered or are being used in bad faith.
The Panelist thus finds that Complainant has satisfied article 2.1 sub c of the Regulations. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 13 of the Regulations, the Panel orders that the Domain names ; ; ; ; ; ; ; ; ; ; and be transferred to the Complainant.
Willem J.H. Leppink
Sole Panelist
Date: October 17, 2008
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