Complainant is Delta Lloyd N.V. of Arnhem, The Netherlands, represented by Novagraaf Nederland B.V., The Netherlands.
Respondent is Justin DeGrodt of Wilmington Island, Georgia, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with SIDN through S GmbH. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 15, 2012. On March 16, 2012, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On March 19, 2012, 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 March 20, 2012. In accordance with the Regulations, article 7.1, the due date for Response was April 9, 2012. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 10, 2012.
The Center appointed Dinant T.L. Oosterbaan as the panelist in this matter on April 23, 2012. 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
According to the evidence submitted by Complainant, Complainant holds several Benelux trademark registrations for OHRA, including a Benelux wordmark with registration number 0463772 and a registration date of June 27, 1989. The trademark OHRA is being used by Complainant for financial and insurance services. The Benelux trademarks have been issued prior to the registration of the Domain Name by Respondent. The Domain Name was first registered on September 14, 2009, and the registration date of the Domain Name by Respondent is August 9, 2011. 5. Parties’ Contentions A. Complainant
Complainant submits that the Domain Name is confusingly similar to the OHRA trademark as it contains the OHRA trademark in its entirety, with the addition of the words “bank” and “online”, which are not distinctive, and the top level domain “.nl”, which can be disregarded.
Complainant also submits that it has become the owner of the trade name OHRA after Complainant’s merger with the company OHRA in 1999.
According to Complainant, in view of Complainant’s trademark and tradename, Respondent has no rights to or legitimate interests in respect of the Domain Name. Internet users are directed to a website which is a (parking) page displaying pay-per-click links. Respondent uses the Domain Name without permission from Complainant for commercial gain and with the purpose of benefiting from the reputation of the trademark of Complainant. Complainant submits that Respondent has registered or is using the Domain Name in bad faith as Respondent was or should have been aware of the well-known trademark of Complainant and is intentionally misleading Internet users for commercial gain. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Based on article 2.1 of the Regulations, a claim to transfer a domain name must meet three cumulative conditions:
A. the domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law in which the complainant has rights, or other name mentioned in article 2.1(a) under II of the Regulations; and
B. the respondent has no rights to or legitimate interests in the domain name; and
C. the domain name has been registered or is being used in bad faith.
As Respondent has not filed a Response, the Panel shall rule on the basis of the Complaint. In accordance with article 10.3 of the Regulations, the Complaint shall in that event be granted, unless the Panel considers it to be without basis in law or in fact. A. Identical or Confusingly Similar
Pursuant to article 2.1(a) of the Regulations, Complainant must establish that the Domain Name is identical or confusingly similar to a trademark or trade name in which Complainant has rights.
Complainant has established that it is the owner of several Benelux trademark registrations for OHRA. The Domain Name incorporates the entirety of the well-known OHRA trademark. The addition of the common, descriptive and non-distinctive elements “bank” and “online” is insufficient to avoid a finding of confusing similarity. The top level domain “.nl” may be disregarded for purposes of article 2.1(a) of the Regulations.
In light of the foregoing, the Panel need not examine whether the Domain Name is identical or confusingly similar to the trade name OHRA. In any event, the record before the Panel contains insufficient, relevant proof that Complainant is the actual owner of the trade name OHRA. The Complaint’s reference to Wikipedia information about Complainant or OHRA websites is insufficient in this regard.
The Panel finds that the Domain Name is confusingly similar to Complainant’s OHRA trademark. B. Rights or Legitimate Interests
In the Panel’s opinion, Complainant has made a prima facie case that Respondent lacks rights to or legitimate interests in the Domain Name. Complainant contends that Respondent has no trade name rights in OHRA and does not own any trademark registrations for OHRA, or has been known under that name. Furthermore, Complainant contends that Respondent is not making a legitimate noncommercial or fair use of the Domain Name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark of Complainant, since it appears that by using the Domain Name, Respondent diverts Internet users to a website which is a pay-per-click site featuring sponsored links to various websites offering financial and insurance products and services of Complainant’s competitors.
Respondent has not filed a Response, and the Panel has not found any evidence in the record that could establish rights to or legitimate interest in the Domain Name on the part of Respondent.
Under these circumstances, and considering article 10.3 of the Regulations, the Panel finds that Respondent has no rights to or legitimate interests in the Domain Name. C. Registered or Used in Bad Faith
The Panel finds that the Domain Name has been registered and is being used in bad faith. The Benelux trademark OHRA of Complainant was registered and used well before the first registration of the Domain Name and the current registration of the Domain Name by Respondent. Considering also the notoriety (at least in The Netherlands) and distinctiveness of Complainant’s mark and the fact that the Domain Name is registered in the “.nl” name space, the Panel finds it highly likely that Respondent had Complainant’s trademark in mind when registering the Domain Name, which it uses for a website displaying pay-per-click links.
The Panel therefore finds that Respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s OHRA trademark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or services on its website or location, which constitutes registration and use in bad faith pursuant to article 3.2(d) of the Regulations. 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.
Dinant T.L. Oosterbaan
Panelist
Dated: April 30, 2012
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