The Complainant is Huisdiervoordeelshop Centrale Diensten B.V. of The Netherlands, represented by Russchen Advocatuur, The Netherlands.
The Respondent is Joreegala Venkatappa Kodhandapani of Bangalore, India. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with SIDN through Key-Systems GmbH. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 2, 2012. On May 3, 2012, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On May 4, 2012, SIDN transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on May 8, 2012. In accordance with the Regulations, article 7.1, the due date for Response was May 28, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 29, 2012.
The Center appointed Willem Hoorneman as the panelist in this matter on June 7, 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
The Complainant is a member of a group of companies active in the field of supplies and accessories for pets. The Complainant is holder of the Benelux word- and device mark HUISDIER VOORDEELSHOP, with Registration No. 0716083, filed on February 26, 2002, and registered for, inter alia, medicine, food and accessories for pets (the “Trademark”).
The Complainant also invokes trade name rights in respect of its name “Huisdiervoordeelshop Centrale Diensten”.
In addition, the Complainant claims to operate the website under the domain name .
The Domain Name was first registered on April 8, 2008. The Respondent became the current registrant of the Domain Name by a change of registrant on March 29, 2012. The Domain Name directs to a so-called parking page. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to its Trademark, as the Domain Name is identical to the word combination “Huisdiervoordeelshop” in its Trademark. The Domain Name is also identical to the trade name used by the Complainant.
The Complainant claims that the Respondent has no rights to or legitimate interests in the Domain Name. According to the Complainant, the Respondent is not active in the field of pet supplies and accessories on the Dutch market.
The Complainant asserts that the Domain Name has been registered or is being used in bad faith. The Complainant claims that the Domain Name was initially registered by a direct competitor of the Complainant on the Dutch market, and that such registration of a domain name very similar to the domain name of the Complainant was deliberately made in order to mislead the public and to direct customers to the website used by such competitor’s own pet shops and affiliated companies. After the Complainant had summoned such competitor to transfer the Domain Name to the Complainant, the Domain Name was allegedly transferred to the Respondent. The Complainant now fears that the Respondent will sell and transfer the Domain Name to a third party who will be(come) active on the Dutch market for pet supplies, in violation of the Complainant’s rights. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
As the 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.
The Panel notes that, in accordance with article 16.4 of the Regulations, the Center has fulfilled its obligation to employ reasonably available means to achieve actual notice of the Complaint to the Respondent.
Based on article 2.1 of the Regulations, a request 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 by means of 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.
Considering these conditions, the Panel rules as follows: A. Identical or Confusingly Similar
The Complainant has based its Complaint on the Trademark and has submitted a copy of its Benelux trademark registration demonstrating that it is the holder of the Trademark. The Complainant has furthermore based its Complaint on the trade name “Huisdiervoordeelshop Centrale Diensten” used by the Complainant (the “Trade Name”). Both the Trademark and the Trade Name are protected under Dutch law.
It is established case law that the top level domain “.nl” may be disregarded in assessing the similarity between the relevant trademark or trade name on the one hand, and the domain name on the other hand (see: Taylor Made Golf Company, Inc. v. Lotom Group S.A.,WIPO Case No. DNL2010-0067; Roompot Recreatie Beheer B.V. v. Edoco LTD, WIPO Case No. DNL2008-0008).
Further, the only difference between the Domain Name and the word element of the Trademark and the relevant part of the Trade Name (i.e. “Huisdiervoordeelshop”) is the use of the plural “huisdieren” instead of the singular “huisdier”, which does not make any relevant difference (see also: XS4ALL Internet B.V. v. Terminte,WIPO Case No. DNL2009-0042). As for the rest, the Domain Name is textually (and therefore visually and phonetically) identical to the word element of the Trademark and the relevant part of the Trade Name of the Complainant.
Therefore, the Panel finds that the Domain Name is confusingly similar to the Complainant’s Trademark and Trade Name. B. Rights or Legitimate Interests
As a result of its failure to submit a Response, the Respondent did not use the opportunity to show rights to or legitimate interests in the Domain Name. It may be assumed that the Respondent was and is not commonly known by the Domain Name. The record does not include any indication that the Respondent has any relevant trademark or trade name rights regarding the term “huisdierenvoordeelshop”.
The Domain Name links to a parking page that appears to contain various links and references to other (commercial) websites and trademarks. It is established case law that such parking pages built around a third party’s trademark or trade name as a rule do not constitute a bona fide offering of goods or services, nor do they constitute a legitimate noncommercial use of a domain name (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; Champagne 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; and Coöperatieve Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland) v. Nguyet Dang, ND Dang,WIPO Case No. DNL2010-0074). In the present case, the Panel notes that the linked pages also cover the area of supplies and accessories for pets.
Based on the foregoing, the Panel is of the opinion that the Respondent has no rights to or legitimate interests in the Domain Name. C. Registered or Used in Bad Faith
The registration of the Complainant’s Trademark and the use of its Trade Name predate the registration and use of the Domain Name by the Respondent. As the Complainant owns trademark and trade name rights effective and enforceable in The Netherlands and is located and actively runs its business in The Netherlands, while the Domain Name is in the “.nl” domain and the parking page linked to it is in the Dutch language, indicating that it is directed at users in The Netherlands, the Panel deems it likely that registration of the Domain Name took place while being aware of the Complainant’s Trademark and/or Trade Name.
Considering also that the parking page of the Respondent contains various links to other online pet shops and related companies, the Panel finds that the Domain Name is being used by the Respondent for commercial gain, by intentionally attracting Internet users to its website where goods of competitors of the Complainant are being advertised, through the likelihood of confusion with the Complainant’s Trademark and Trade Name as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. This constitutes evidence of bad faith registration and use in accordance with article 3.2(d) of the Regulations (see: Seiko EPSON Corporation v. ANEM Computers / ANEM,WIPO Case No. DNL2010-0024; and Taylor Made Golf Company, Inc. v. Lotom Group S.A.,WIPO Case No. DNL2010-0067).
Having refrained from submitting a Response, the Respondent has failed to provide any evidence to the contrary. On the above grounds, the Panel finds that the requirements of registration or use in bad faith of the Domain Name pursuant to article 2.1(c) of the Regulations have been met. 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 the Complainant.
Willem Hoorneman
Panelist
Dated: June 21, 2012
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