The Complainant is LION S.A. of Neuville, France, represented by Snijders Advocaten, the Netherlands.
The Respondent is B. Bosch of Zaandam, the Netherlands. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with SIDN through Antagonist B.V. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 15, 2013. On May 15, 2013, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On May 17, 2013, 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 22, 2013. In accordance with the Regulations, article 7.1, the due date for Response was June 11, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 12, 2013.
The Center appointed Remco M.R. van Leeuwen as the panelist in this matter on June 18, 2013. 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 Panel will proceed on the facts and circumstances as stated by the Complainant and will take into account the information provided by the Center and by SIDN.
The Complainant trades in mattresses, beds and related products under several trademarks through a store chain in the Benelux countries and France and a webshop (“” and
“”).
The Complaint is based inter alia on the Benelux figurative trademark DE MATRASSENKONING, registered on May 18, 2006, under number 0803919, for products in class 20 and 24 and services in class 35 (hereafter the “Trademark”) and the trade name ‘De Matrassenkoning’ (hereafter the “Trade Name”).
The Domain Name was registered on May 21, 2009. According to SIDN’s WhoIs information and as confirmed by SIDN, the registrant of the Domain Name is B. Bosch and this person is therefore the Respondent in these proceedings.
The Panel has ascertained that the Domain Name resolves to a website which offers mattresses, mentions ‘de Matrassenkoning’ with contact details in Arkel, the Netherlands, and states ‘powered by Bosch Bedding’. 5. Parties’ Contentions A. Complainant
A trademark or trade name protected under Dutch law
The Complainant claims that it is the proprietor of the Trademark and the Trade Name. According to the Complainant, it and its licensees use the Trademarks and the Trade Name intensively in relation to the exploitation of their store chain. The Complainant further claims that the brand DE MATRASSENKONING is well known in the Benelux and in France. The Domain Name is identical to the Trademark and the Trade Name as the Domain Name contains (the most relevant part of) the Trademark and the Trade Name. Moreover, the Domain Name is confusingly similar to the Trade Name, according to the Complainant.
No rights or legitimate interests
According to the Complainant, the Respondent lacks rights and legitimate interests in the Domain name, since the Respondent has no relation with the Complainant and no authorization or license to use the Trademark and/or the Trade Name. The Respondent is causing harm to the Complainant, as the website of the Respondent is fake and (therefore) misleads the public, according to the Complainant.
Registration or use in bad faith
According to the Complainant, the Domain Name was registered and is being used in bad faith. The Respondent must have been aware of the Complainant and its Trade Mark and Trade Name, as DE MATRASSENKONING is famous in the Benelux and in France. Further, the Domain Name was registered with the aim to mislead and disrupt the Complainant's business, to follow on all the commercial efforts of the Complainant, and the Domain Name is being used for commercial gain, according to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Panel has ascertained that the Center has employed reasonably available means to achieve actual notice to the Respondent in accordance with article 16.4 of the Regulations.
In accordance with article 10.3 of the Regulations, since no Response has been filed by the Respondent, the Panel will have to decide on the basis of the Complaint. Based on this article, the Panel will have to grant the Complaint unless it seems unlawful or without merit. Therefore, the Panel will review the Complaint on this basis.
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 provided evidence that it is the proprietor of the Trade Mark. The Panel finds that the designation DE MATRASSENKONING is the characteristic part of the figurative mark of the Complainant. Further, the Complainant has sufficiently demonstrated that the Trade Name is used for its store chain. It is established case law under the Regulations that the top level domain “.nl” may be disregarded in assessing the similarity between the relevant trademark and/or trade name on the one hand, and the domain name on the other hand. The Panel finds that the relevant part of the Domain Name is identical to the Complainant’s Trademark and Trade Name.
The Panel therefore rules that the Complainant has met the first ground of the Regulations as set out in article 2.1(a) under I. B. Rights or Legitimate Interests
The Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the Domain Name. The Respondent did not file any Response and the Panel has not found any rights or legitimate interests that the Respondent may have in the Domain Name in the record, and will have to presume it has none.
The Panel therefore rules that the Complainant has met the second ground of the Regulations as set out in article 2.1(b). C. Registered or Used in Bad Faith
The Panel notes that the Trademark, which is effective and enforceable in the Netherlands, predates the registration of the Domain Name. The Complainant has provided evidence of actual use of the Trademark in the Netherlands, which use would normally contribute to a reputation associated with the trademark owner. The Panel considers it plausible that, as the Complainant claims, the Respondent was aware of the Complainant’s older Trademark at the time of registration of the Domain Name. The Panel has furthermore ascertained that the Respondent is using the Domain Name for a website on which mattresses are offered for sale. In the absence of any evidence to the contrary, the Panel finds it likely that the Respondent registered and is using the Domain Name for commercial gain, by attracting Internet users to the Respondent’s website through the likelihood of confusion which may arise with the Complainant’s trademark. These findings, together with the finding that the Respondent has no rights or legitimate interests in the Domain Name, lead the Panel to conclude that the Domain Name has been registered and is being used in bad faith.
The Panel therefore rules that the Complainant has met the third ground of the Regulations as set out in article 2.1(c). 7. Deision
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.
Remco M.R. van Leeuwen
Panelist
Date: June 25, 2013
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