WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Bejo Zaden B.V. v. Lotom Group S.A. Case No. DNL2010-0030 1. The Parties
Complainant is Bejo Zaden B.V. of Warmenhuizen, the Netherlands, represented by Novagraaf Nederland B.V., the Netherlands.
Respondent is Lotom Group S.A. of Panama City, Panama. 2. The Domain Name
The disputed domain name (the “Domain Name”) is registered with SIDN through the registrar EPAG Domainservices Gmbh. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 22, 2010. On April 22, 2010, the Center transmitted by email to SIDN a request for registry verification in connection with the Domain Name. On April 22, 2010, SIDN transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 22, 2010. In accordance with the Regulations, article 7.1, the due date for Response was May 12, 2010. The Respondent did not submit any response. Accordingly, the Center notified Respondent's default on May 14, 2010.
After having received the payment of the fees, the Center appointed Tjeerd F.W. Overdijk as the sole Panelist in this matter on May 26, 2010. 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 9.2. 4. Factual Background
The Complainant is a Dutch company with limited liability having its business in Warmenhuizen, The Netherlands. Complainant is a company specialized in seeds and has been active in the Netherlands and worldwide. Complainant has registered the domain names and respectively on November 13, 1996 and January 27, 2008.
Respondent is a company established in Panama City, Panama. Respondent registered the Domain Name on June 12, 2008. 5. Parties' Contentions A. Complainant
Complainant alleges that it is a well-known seed specialist who has been active in the Netherlands and worldwide. Complainant submitted the following trademark registrations:
1. Benelux figurative mark BEJO (no. 350559) filed on November 14, 1977 for various goods and services in the classes 1, 29 and 31;
2. Benelux figurative mark BEJO (no. 728252) filed on January 13, 2003 for various goods and services in the classes 1, 7, 29 and 31;
3. Benelux word mark BEJO (no. 815722) filed on January 16, 2007 for various goods and services in the classes 1, 7, 29 and 31;
4. Community figurative mark BEJO (no. 296582), filed on July 7, 1996 for goods and services in class 31.
These registrations will hereafter jointly be referred to as the “Trademarks”. The Benelux word mark BEJO (no. 815722) will be referred to as the “Word Mark”.
Complainant uses the Word Mark in its domain names and and uses the Trademarks on its websites. Complainant furthermore alleges that it is the proprietor of the Trade Name Bejo Zaden (the “Trade Name”) and submitted an extract of the Dutch Chamber of Commerce. Complainant uses its Trade Name on its website. The Domain Name is identical or confusingly similar to Complainant's Trademarks and Trade Name rights
Complainant alleges that the Trademarks are distinctive and that Respondent infringes upon the Trademarks of Complainant. There is similarity between the Word Mark and the Domain Name. The Word Mark and the Domain Name show phonetically, visual and conceptual resemblance in such a way that there is a likelihood of confusion by the public. Complainant contends that the public will expect that the website with the Domain Name is being exploited by Complainant. Respondent has no rights or legitimate interests in the Domain Name
Complainant has put forward that Respondent does not own any valid trademark right for the name Bejo or Bejo Zaden, nor is Respondent owner of trade name rights for the name Bejo Zaden or Bejo sec. According to Complainant, Respondent never used the Domain Name in good faith for the exploitation of goods and services before it received notice of the Complaint, nor did it make any legitimate or noncommercial use of the Domain Name. Complainant further stipulates that Respondent is not generally known under the name Bejo Zaden, nor under the name Bejo. Respondent might as well have chosen another domain name, one of which the Word Mark does not play a prominent role. Respondent has registered or is using the Domain Name in bad faith
Complainant argues that Respondent never used the Domain Name in good faith for the exploitation of its goods and services. The Domain Name resolves to a website that shows a collection of sponsored links of which numerous are linked to websites of other seeds- and plant companies and specialists. Since the companies referred to on the website offer similar services as Complainant, there is a likelihood of customer confusion. This furthermore causes trademark infringement.
Complainant finds it likely that Respondent is aware of the Trademarks of Complainant at the time of registering the Domain Name. Respondent simply could have searched the trademark register. The Complainant included this argument under its assertions regarding Respondent's lack of rights or legitimate interests, but the Panel notes that this also goes to the issue of bad faith.
According to Complainant, the Domain Name is being used to gain commercial benefit. Respondent benefits from the success and well-known reputation of Complainant. In using a confusingly similar sign, confusion occurs amongst the public, as it might be of the opinion that the website under the Domain Name is being offered by Complainant.
Given the previous decisions in Prof. Dr. Geert Hofstede en Geert Hofstede B.V. v. Lotom Group S.A.,WIPO Case No. DNL2008-0043; Technische Unie B.V. v. Lotom Group S.A.,WIPO Case No. DNL2008-0063 and ADP Nederland B.V. v. Lotom Group S.A.,WIPO Case No. DNL2009-0009 Complainant finds it highly likely that Respondent is a domain name squatter. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings Introductory remarks Language of the proceedings
As Respondent is not domiciled in the Netherlands and there do not appear to be any exceptional circumstances which persuade the Panelist to decide that the proceedings are to be conducted in Dutch, the language of the proceedings is English in accordance with article 17.2 of the Regulations. Default of Respondent
Article 10.3 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 fact.
Based on article 2.1 of the Regulations, a claim to transfer a domain name must meet three cumulative conditions:
- The domain name is identical or confusingly similar to a trademark, a trade name or other name by means of article 2.1 sub a (II) of the Regulations;
- The respondent has no rights to or legitimate interest in the domain name;
- The domain name has been registered or is being used in bad faith.
Considering these conditions, the Panelist rules as follows: A. Identical or Confusingly Similar
It is established case law that the top level domain “.nl” can be disregarded in assessing the similarity between the relevant trademark or trade name on the one hand, and the contested domain name on the other, because “.nl” is a necessary component for registration and use of a domain name (see for example Pieter de Haan v. Orville Smith Ltd.,WIPO Case No. DNL2008-0017). Furthermore, the additional descriptive component ‘zaden' (meaning ‘seeds' in English) is not enough to avoid the likelihood of confusion, since in the absence of any indications to the contrary at least some Internet users are likely to assume that the Domain Name identifies a website about seeds of or approved by Complainant.
Therefore, the Panelist finds that the Domain Name is confusingly similar to Complainant's Word Mark within the meaning of article 2.1 sub a of the Regulations. Given this view of the Panelist in relation to similarity between the Domain Name and the Word Mark, the case does not further depend on the alleged identity between the Domain Name and the Trade Name. B. Rights or Legitimate Interests
Pursuant to article 2.1 sub b of the Regulations, Complainant must demonstrate that Respondent has no rights to or legitimate interest in the Domain Name. This condition is met if Complainant makes a prima facie case that Respondent has no such rights or interests, and Respondent fails to rebut this. (See for example Pieter de Haan, supra).
As follows from the Complaint, Respondent does not have any relevant trademark or trade name rights and it is not generally known under the name Bejo Zaden or Bejo. Moreover, Respondent only uses the Domain Name to offer sponsored links to websites of competitors of Complainant.
Since Respondent did not file a Response and there is no other indication of a right to or a legitimate interest in the Domain Name, the Panelist considers that such a right or interest is not present.
The Panelist therefore rules that the second criterion is also met. C. Registered or Used in Bad Faith
Complainant has argued that Respondent was aware of the well-known Trademarks of Complainant. This argument has not been contested by Respondent. The Panelist is of the opinion that Respondent was aware or should have been aware of Complainant and its Trademarks.
The Domain Name resolves to a website that offers sponsored links to inter alia websites of companies offering goods and services that are identical or similar to the products marketed and sold by Complainant. The Domain Name therefore can be considered as used for commercial gain, since it attracts Internet users to other online locations through the likelihood of confusion which may arise with the Trademarks.
Furthermore, taking into account the previous decisions as referred to by Complainant and QSoft Consulting Limited v. Lotom Group S.A.,WIPO Case No. DNL2009-0018, Respondent was involved in similar cases which it equally chose not to defend and in which transfer was ordered. These circumstances appear to confirm Respondent's activity as a domain name squatter.
Given all of the above circumstances, the Panelist finds that the Domain Name has been registered and used in bad faith.
In the view of the above, the third criterion is also met. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulation, the Panel orders that the Domain Name be transferred to Complainant.
Tjeerd F.W. Overdijk
Sole Panelist
Dated: June 3, 2010
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