Complainant is SPRL Trezia of Stavelot, Belgium, represented by Ramquet, Pricken, Sonnet & Lemmens, Belgium.
Respondent is Helo Holdings LTD of Amsterdam, the Netherlands. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with SIDN. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 15, 2010. On September 16, 2010, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On September 17, 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 September 20, 2010. In accordance with the Regulations, article 7.1, the due date for Response was October 10, 2010. As no Response was filed, the Center notified Respondent’s default on October 11, 2010.
After receipt of the applicable fees, the Center appointed Wolter Wefers Bettink as the panelist in this matter on October 15, 2010. The Panel finds that it was properly constituted. 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
Complainant’s company operates websites offering holiday accommodation in the Belgian Ardennes.
Complainant is the proprietor of a Benelux figurative trademark with the textual element ARDENNES-ETAPE registered under number 707498 on September 26, 2001.
The Domain Name has been registered on January 21, 2005. On December 20, 2009, the Domain Name was registered in the name of Respondent. The Domain Name directs to a parking page, which contains links to competitors of Complainant. 5. Parties’ Contentions A. Complainant
Complainant contends that the Domain Name is (in auditory terms) identical or confusingly similar to its ARDENNES-ETAPE trademark and trade name.
Complainant claims that Respondent has no rights or legitimate interests in the Domain Name. According to Complainant, Respondent has no trademark rights and is not known by the Domain Name.
Complainant asserts that the Domain Name is registered or is being used in bad faith, because Respondent was aware of Complainant’s trademark and trade name. Furthermore, the Domain Name directs to a website, which directs Internet users to websites of competitors of Complainant. Finally, Respondent is offering the Domain Name for sale. B. Respondent
Respondent did not submit a Response. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant has shown that it has rights in the Benelux figurative trademark with the textual element ‘ARDENNES-ETAPE’. Although the figurative element in Complainant’s trademark is very visible, it is still less dominant than the textual element ‘ARDENNES-ETAPE’, which, the Panelist finds, is the dominant part of the trademark.
Complainant provided some print-outs of its websites. These show that Complainant also uses the name Ardennes-E, combined with a stylized capital ‘A’. The textual element ‘Ardennes-E’ is the dominant part of this sign. Apparently this sign is used as a tradename for the enterprise of Complainant.
The Panel finds that the Domain Name is confusingly similar to both Complainant’s trademark and its trade name. The Domain Name differs from the trademark and trade name by two letters (‘Ardenne’ without the ‘s’, ‘Etappe’ with an extra ‘p’), but this cannot prevent the Domain Name from being confusingly similar to Complainant’s trademark and trade name. B. Rights or Legitimate Interests
Complainant claims that Respondent has no right to or legitimate interest in the Domain Name, which the Panelist understands to mean that Complainant has not granted permission to Respondent to use the Domain Name.
Furthermore, there is no evidence that Respondent was known by the Domain Name prior to the submission of the Complaint.
The Panelist finds that Complainant’s trademark is not descriptive, while the Domain Name resolves to a parking page which offers links to, inter alia, websites on which goods and services of Complainant’s competitors are offered for sale. It is by now well established that parking pages built around a trademark (as contrasted with pages built around a dictionary word and used only in connection with the generic or merely descriptive meaning of the word) do not constitute a bona fide offering of goods or services, nor do they constitute a legitimate noncommercial use (see mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc.,WIPO Case No. D2007-1141; Mobile Communication Service Inc. v. WebReg, RN,WIPO Case No. D2005-1304; Asian World of Martial Arts Inc. v. Texas International Property Associates,WIPO Case No. D2007-1415; Champangne Lanson v. Development Services/MailP, Inc.,WIPO Case No. D2006-0006; The Knot, Inc. v. In Knot we Trust LTD,WIPO Case No. D2006-0340; Ustream.TV, Inc. v. Vertical Axis, Inc,WIPO Case No. D2008-0598).
As Respondent has failed to file a Response, it has not provided any evidence on its behalf. The Panelist therefore concludes that Respondent has no right or legitimate interest in the Domain Name. C. Registered or Used in Bad Faith
The registration of the trademark predates the Domain Name’s registration by some eight years. As the Respondent is located in the Netherlands, where Complainant has been active for many years, while the Domain Name is in the “.nl” domain, indicating that it is directed at users in the Netherlands, the Panel deems it likely that Respondent was aware of Complainant’s trademark and/or trade name when registering the Domain Name. In addition, a simple trademark register search would have informed Respondent of the existence of Complainant’s trademark, while the first four results of a Google search on ‘ardenne-etappe’, as carried out by the Panelist, refer to Complainant’s websites, where its trade name is used. Therefore, even if Respondent had not actually been aware of Complainant’s rights, a small effort on its part would have revealed those rights. If Respondent has not made that effort, this comes for its accord, since that would imply that Respondent has been willfully blind to such rights.
Finally, by using the Domain Name for a parking page, it is likely that Respondent attempts to attract Internet users to its website, by creating a likelihood of confusion with Complainant’s trademark as to the source, affiliation, or endorsement of Respondent’s website.
Under these circumstances, the Panel concludes that the Domain Name has been registered or is being used in bad faith. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name be transferred to Complainant.
Wolter Wefers Bettink
Panelist
Dated: October 29, 2010
Full & Egal Universal Law Academy