The Complainant is AlbumPrinter B.V. of Amsterdam, the Netherlands, represented by HeidemanBoot Advocaten BV, the Netherlands.
The Respondent is Bahnhofsgaststaette of Beetzendorf, Germany. 2. The Domain Name and Registrar
The disputed domain name (hereinafter 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 June 27, 2013. On June 27, 2013, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On June 28, 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 July 3, 2013. In accordance with the Regulations, article 7.1, the due date for Response was July 23, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 24, 2013.
The Center appointed Richard C.K. van Oerle as the panelist in this matter on August 6, 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
According to the evidence submitted by the Complainant, the Complainant holds a Benelux trademark registration for the word mark ALBELLI, with registration number 0827861, registered on August 8, 2007, for goods and services in classes 9, 16 and 42 (the “Trademark”). The Trademark has been registered prior to the registration of the Domain Name by the Respondent as the latter registration was on October 13, 2010.
The Domain Name currently directs to a website that contains links on its home page. By clicking on these links Internet users are directed to secondary pages on the website featuring Pay-Per-Click (“PPC”) advertising links. These PPC advertising links direct to third party websites (as well as the Complainant’s website). 5. Parties’ Contentions A. Complainant
The Complainant is in the business of producing photo books and selling these online. The trademark ALBELLI is being used by the Complainant for these services. It registered the domain name on July 13, 2007. It has become a large supplier of photo books.
The Domain Name is phonetically identical to and textually and visually confusingly similar to the Trademark, as it only differs in the extra letter “l” between the letters “a” and “b”.
The Respondent has no rights or legitimate interests in the Domain Name. It has an entirely different (trade) name (Bahnhofsgaststaette). The Respondent also is in no way affiliated with the Complainant, nor has the Complainant ever licensed or authorized the Respondent to use its Trademark in any way.
The Domain Name has been registered or is being used in bad faith. As the Complainant’s Trademark has been actively used from 2007 onwards on the Dutch market, it is likely that the Respondent was aware of the Complainant’s Trademark when registering the Domain Name.
The website under the Domain Name provides a range of sponsored links to websites for photo book products and services, including the Complainant’s website. It also provides a range of sponsored links under broad subject headings that relates to (digital) photo book products and services, such as “Fotoalbum maken”, “Fotoboek maken”, “Gratis fotoboek”, “Vierkant fotoboek”, etc., and even “Albelli”, the Complainant’s Trademark, which is spelled correctly here. The links lead to goods and services that directly compete with the Complainant’s goods and services. The Respondent is clearly making a commercial use of the website under the Domain Name.
The Respondent’s conduct is to be considered typo-squatting. The sign “allbelli” can be considered as a typo of the trademark ALBELLI. The Domain Name as such contains a purposeful misspelling of the Complainant’s Trademark designed to take advantage of mistakes consumers are likely to make when intending to enter the Complainant’s domain name. The Domain Name is being used for commercial gain, by attracting Internet users to a website of the Respondent through the likelihood of confusion which may arise with the Trademark as to the source, sponsorship, affiliation or endorsement of the website of the Respondent or of products or services on the Respondent’s website. It is clear that the Domain Name has been registered or is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Panel notes that, in accordance with article 16.4 of the Regulations, the Center has fulfilled its obligation to employ reasonable available means to achieve actual notice of the Complaint to the Respondent.
Article 10.3 of the Regulations provides that in the event that a respondent fails to submit a response, the complaint shall be granted unless the panel considers it to be without basis in law or fact.
The Panel notes that the Respondent has not filed a response. However, this does not mean that the requested remedy should automatically be awarded. The Panel will have to determine whether the Complainant’s prima facie case meets the requirements of article 2.1 of the Regulations (Taylor Made Golf Company, Inc. v. Lotom Group S.A.,WIPO Case No. DNL2010-0067, Société Air France v. Helo Holdings LTD,WIPO Case No. DNL2010-0082 and Nutri-Akt B.V. v. Edoco LTD,WIPO Case No. DNL2011-0003).
Based on article 2.1 of the Regulations, a claim to transfer a domain name must meet three cumulative requirements:
a. the disputed 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) sub II of the Regulations; and
b. the registrant has no rights to or legitimate interests in the disputed domain name; and
c. the disputed domain name has been registered or is being used in bad faith.
Considering these requirements, the Panel rules as follows. A. Identical or Confusingly Similar
The Complainant has established that it is the owner of the Trademark.
It is established case law that the top level domain “.nl” may be disregarded in assessing the similarity between the relevant trademark on the one hand, and the domain name on the other hand (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 Trademark is the insertion in the center of the Domain Name of an extra “l”, which does not make any relevant difference (XS4ALL Internet B.V. v. Terminte,WIPO Case No. DNL2009-0042; and Simyo GmbH v. Lotom Group,WIPO Case No. DNL2012-0060). As for the rest, the Domain Name is identical to the Trademark.
Therefore, the Panel finds that the Domain Name is confusingly similar to the Complainant’s Trademark within the meaning of article 2.1(a) of the Regulations. B. Rights or Legitimate Interests
Pursuant to article 2.1(b) of the Regulations, the complainant must demonstrate that the respondent has no rights to or legitimate interests in the domain name. This condition is met if the complainant makes at least a prima facie case that the respondent has no such rights or legitimate interests, and the respondent fails to rebut this. The complainant is then deemed to have satisfied the second criterion (see for example Technische Unie B.V. and Otra Information Services v. Technology Services Ltd.,WIPO Case No. DNL2008-0002; Decho Corporation v. Backupsonline,WIPO Case No. DNL2009-0058; and Nutri-Akt B.V. v. Edoco LTD.,WIPO Case No. DNL2011-0003).
As the Complainant alleges, and as the Panel’s review of the website to which the Domain Name directs establishes, the Respondent has not used the Domain Name in connection with a bona fide offering of goods or services, nor has the Respondent made a legitimate non-commercial or fair use of the Domain Name, without intent for commercial gain. Instead, it appears that the Respondent, for commercial gain, has sought to confuse Internet users so that those users searching for the Complainant's website will mistakenly reach a PPC website.
PPC websites are not per se legitimate or illegitimate; rather, the Panel must consider the nature of the domain name and the advertising on the website. If the links on a PPC website are exclusively based on the dictionary meaning of a domain name, that generally would be a fair use because there would be no trademark rights implicated as such by the PPC links. In contrast, if some of the links take advantage of the trademark value of the domain name, then this would be an illegitimate use that trades on the goodwill of the trademark (Ustream.TV, Inc. v. Vertical Axis, Inc.,WIPO Case No. D2008-0598).
Several of the listed links are directly competitive with the Complainant’s activities, e.g. “Fotoalbum maken”, “Fotoboek maken”, “Gratis fotoboek” and “Vierkant fotoboek”. Because these links take advantage of the Complainant’s Trademark, the Panel concludes that the Respondent’s use is not a legitimate noncommercial or fair use, or a bona fide offering of goods or services.
The Complainant has not licensed or otherwise permitted the Respondent to use the Trademark or to apply for use of any domain name incorporating the Trademark.
As the Respondent has failed to file a Response or any other communication, it has not provided any evidence rebutting the Complainant’s prima facie case. In the absence of such contradiction, the Panel did not establish any indications that any of the circumstances as described in article 3.1 of the Regulations apply, or that the Respondent has any rights to or legitimate interests in the Domain Name in any other way.
Considering all of the above, the Panel is of the opinion that there is nothing in the record that evidences the Respondent’s rights to or legitimate interests in the Domain Name. The Panel does not find that the Complainant’s claims come across as unlawful or unfounded. The Complaint meets the second element of the Regulations. C. Registered or Used in Bad Faith
The registrations and use of the Complainant’s Trademark predate the registration and use by the Respondent of the Domain Name by over three years. As the Complainant actively runs its business in the Netherlands, while the Domain Name is in the “.nl” domain space 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 highly likely that the Respondent was aware of the Complainant’s Trademark when registering the Domain Name.
Considering also that the parking page of the Respondent contains various links to other (commercial) websites offering services similar to the services the Complainant offers, 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 services similar to those of the Complainant are being advertised, through the likelihood of confusion with the Complainant’s Trademark 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 (Seiko EPSON Corporation v. ANEM Computers / ANEM,WIPO Case No. DNL2010-0024; Taylor Made Golf Company, Inc. v. Lotom Group S.A.,WIPO Case No. DNL2010-0067; and Simyo GmbH v. Lotom Group,WIPO Case No. DNL2012-0060).
When attempting to visit the Complainant’s website, the visitor could easily be diverted to the Respondent’s websites (parking pages) connected to the Domain Names as a result of the “typosquatting” practice conducted by the Respondent. This indicates that the Respondent intends to take advantage of possible mistakes by Internet users typing the Complainant’s domain name. The act of “typosquatting” or registering a domain name that is a misspelling of a mark in which a party has rights, has often been recognized as evidence of bad-faith registration and use (Paragon Gifts, Inc v. Domain.Contact, WIPO Case No. D2004-0107, citing National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini,WIPO Case No. D2002-1011; Bang & Olufsen a/s v. Unasi Inc.,WIPO Case No. D2005-0728; and Coöperatieve Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland) v. Adam Culbertson, Culbertson, WIPO Case No. DNL2010-0075).
The Panel finds that the Domain Name has been registered and is being used in bad faith, and that the requirement of registration or use in bad faith of the Domain Name pursuant to article 2.1(c) of the Regulations has therefore 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.
Richard C.K. van Oerle
Panelist
Date: August 13, 2013
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