Complainant is SRC-Cultuurvakanties B.V. of Groningen, the Netherlands, represented by Novagraaf Nederland B.V., the Netherlands.
Respondent is Diamond Point Enterprises Limited of Antigua and Barbuda. 2. The Domain Name and Registrar
The disputed domain name (hereafter 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 August 27, 2013. On August 27, 2013, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On August 30, 2013, 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 August 30, 2013. In accordance with the Regulations, article 7.1, the due date for Response was September 19, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 20, 2013.
The Center appointed Dinant T.L. Oosterbaan as the panelist in this matter on October 11, 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 Complainant, Complainant holds several Benelux trademark registrations for SRC, including a Benelux wordmark with registration number 0781537 and a registration date of December 2, 2005. Complainant is a travel agency active on the Dutch market since 1983. SRC is the dominant part of its trade name since 1989. The Benelux trademarks have been issued prior to Respondent’s registration of the Domain Name on January 9, 2009. 5. Parties’ Contentions A. Complainant
Complainant submits that the Domain Name is confusingly similar to the SRC trademark as it contains the SRC trademark in its entirety.
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 Complainant’s trademark 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 or trade name in which Complainant has rights.
Complainant has established that it is the owner of several Benelux trademark registrations for SRC. The Domain Name incorporates the entirety of the SRC trademark. The addition of the common, descriptive and non-distinctive element “reizen” (which is Dutch for “travel”) 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.
The Domain Name is also confusingly similar to the trade name SRC.
The Panel finds that the Domain Name is confusingly similar to Complainant’s SRC trademark and trade name. 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. Respondent has no trade name rights in SRC and does not own any trademark registrations for SRC, nor has Respondent 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 including websites offering travel 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 interests 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 SRC of Complainant was registered and used well before the current registration of the Domain Name by Respondent. Considering also that the SRC trademark has been registered as a domain name in the “.nl” name space, the Panel finds it highly likely that Respondent had Complainant’s trademark in mind when registering the Domain Name. Moreover, Respondent’s use of the Domain Name for a website displaying pay-per-click links, including links related to Complainant’s field of business, suggests that Respondent had knowledge of Complainant’s trademark when it registered the Domain Name.
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 SRC trademark and trade name 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.
While this is merely an additional consideration, the Panel also notes that Respondent has been found to have registered and/or used domain names in bad faith in several other cases under the Regulations, which clearly suggests a pattern of such conduct on the part of Respondent (see, e.g., Hotelplan Internationale Reisorganisaties B.V. en Orad B.V. v. Diamond Point Enterprises Limited,WIPO Case No. DNL2009-0010; Huurcommissie v. Diamond Point Enterprises Limited, WIPO Case No. DNL2011-0039; and OOM Holding N.V. v. Diamond Point Enterprises Limited,WIPO Case No. DNL2011-0076). 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
Date: October 17, 2013
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