Complainant is Consumentenbond of The Hague, the Netherlands, represented by SOLV Advocaten, the Netherlands.
Respondent is Gaststaette Rasthaus of Winterfeld, Germany. 2. The Domain Name and Registrar
The disputed domain name (hereafter: the “Domain Name”) is registered with SIDN through EuroDNS S.A. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 2, 2012. On October 3, 2012, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On October 4, 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 October 5, 2012. In accordance with the Regulations, article 7.1, the due date for Response was October 25, 2012. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 26, 2012.
The Center appointed Dinant T.L. Oosterbaan as the panelist in this matter on November 6, 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 CONSUMENTENBOND, including a Benelux wordmark with registration number 0404386 and a registration date of November 5, 1984. The Benelux trademarks have been issued prior to the registration of the Domain Name by Respondent. The trademark and trade name CONSUMENTENBOND are being used by Complainant in representing the interests of Dutch consumers.
The Domain Name was first registered on December 30, 2009. Respondent became the registrant of the Domain Name on October 12, 2010. 5. Parties’ Contentions A. Complainant
Complainant submits that the Domain Name is confusingly similar to the CONSUMENTENBOND trademark as it contains the CONSUMENTENBOND trademark in its entirety, with only one letter “n” in the trademark being replaced with an “m” in the Domain Name, which is not sufficient to prevent confusing similarity.
According to Complainant, in view of Complainant’s trademarks and trade name, 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 no doubt had or should have had knowledge 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. 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 in which Complainant has rights.
Complainant has established that it is the owner of Benelux trademark registrations for CONSUMENTENBOND. The Domain Name incorporates the entirety of the CONSUMENTENBOND trademark, except for the third “n” of the trademark, which is replaced by the letter “m”. The top level domain “.nl” may be disregarded for purposes of article 2.1(a) of the Regulations. The Panel finds that the Domain Name is an obvious misspelling of Complainant’s trademark. Numerous other .nl panels have found that a domain name consisting of a misspelled trademark is in principle confusingly similar to that mark (see, e.g., Coöperatieve Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland) v. Nguyet Dang, ND Dang,WIPO Case No. DNL2010-0074).
The Panel finds that the Domain Name is confusingly similar to Complainant’s CONSUMENTENBOND 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. This is particularly true as 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 trademarks of Complainant. Based on the evidence provided by Complainant, it appears that by using the Domain Name, Respondent diverts Internet users to a website which is a pay-per-click site featuring links to various commercial websites including websites in the Dutch language. Respondent makes use of the value of the CONSUMENTENBOND trademark and the likelihood of confusion with the trademarks of Complainant, which cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name. See also paragraph 2.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).1 Furthermore, on the basis of the record, the Panel finds that Respondent is not commonly known by the Domain Name nor has it acquired trademark rights corresponding to the Domain Name.
Under these circumstances 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 primary CONSUMENTENBOND trademark of Complainant was first registered as a Benelux trademark on November 5, 1984. This date is well before the registration date of the Domain Name by Respondent. Considering also the notoriety (in the Netherlands) and distinctiveness of Complainant’s mark, the Panel finds that Respondent knew or should have known that the Domain Name, which is registered in the Dutch domain name space, included Complainant’s trademark almost entirely.
Further, Respondent uses the Domain Name for a website displaying pay-per-click links. On this basis, the Panel finds that Respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trademark of Complainant as to the source, sponsorship, affiliation, or endorsement of its website, which constitutes registration and use in bad faith pursuant to article 3.2(d) of the Regulations.
Accordingly, the Panel finds that Complainant has established the third criterion of article 2.1 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: November 12, 2012
1 The mechanism of the Regulations is comparable to the Uniform Domain Name Dispute Resolution Policy (UDRP), see Technische Unie B.V. and Otra Information Services v. Technology Services Ltd.,WIPO Case No. DNL2008-0002.
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